People v Riggins (Terrence)

[*1] People v Riggins (Terrence) 2014 NY Slip Op 50305(U) Decided on March 5, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
11-310.

The People of the State of New York, Respondent, - -

against

Terrence Riggins, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Melissa C. Jackson, J.), rendered February 25, 2011, upon a plea of guilty, convicting him of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Melissa C. Jackson, J.), rendered February 25, 2011, affirmed.

Application by appellant's counsel to withdraw as counsel is granted (see Anders v California, 386 U.S. 738 [1967]; People v Saunders, 52 AD2d 833 [1979]). The Anders-Saunders brief submitted by counsel, while not a model of perfection, adequately set forth "a statement of the factual and legal issues relevant to the conviction and sentence sufficient to enable the court to evaluate and correctly decide the appeal" (People v Miller, 99 AD2d 1021 [1984]), and demonstrated that counsel acted as an "active advocate" on defendant's behalf (People v Stokes, 95 NY2d 633, 636 [2001], quoting Anders v California, 386 US at 744; see and compare People v Gonzalez, 47 NY2d 606, 610 [1979]). Though mindful of "the need to ensure that the Anders exception is carefully scrutinized and applied" (People v Stokes, 95 NY2d at 636), we cannot say that assigned counsel's otherwise accurate no-merit brief is fatally deficient because it misidentified the level of the reckless assault charge to which defendant pled guilty. (The brief erroneously stated that the conviction was for the reduced crime of "assault in the second degree [pursuant to] Penal Law § 120.00[2])," when in fact defendant pleaded to assault in the third degree pursuant to the same cited Penal Law section.) And while it would have been preferable had the Anders brief specifically addressed the potential appealable issue that counsel "found" and referenced in her previous letter(s) to defendant, the absence of such a discussion provides no sound basis to reject the Anders brief in the circumstances here present, particularly where defendant has not authorized counsel to raise any such issue by way of a [*2]motion to vacate his guilty plea. Moreover, upon an independent review of the record as a whole and the extensive plea colloquy in particular, we agree that there are no remaining valid appealable issues which could be raised on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 05, 2014