People v Ballard (David)

[*1] People v Ballard (David) 2014 NY Slip Op 51075(U) Decided on July 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
13-246

The People of the State of New York, Respondent,

against

David Ballard, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), rendered October 19, 2012, convicting him, upon a plea of guilty, of driving while ability impaired, and imposing sentence.

Per Curiam.

Appeal from judgment (Robert M. Mandelbaum, J.), rendered October 19, 2012, held in abeyance, motion by assigned counsel to be relieved denied without prejudice to renewal, and counsel directed to file a supplemental appellant's brief within 30 days from the date of entry of this order.

Assigned counsel has filed an Anders—Saunders brief (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1979]) in connection with defendant's appeal from a conviction for driving while ability impaired, in which counsel avers that "a potentially viable issue" exists as to the sufficiency of the plea court's inquiry as to the "type of weapon" involved, that pursuing the issue on appeal "could lead to reinstatement of the felony charge," and that defendant has "not authorized us to take the associated risk." However, so far as appears from our review of the record, this drunk driving prosecution involved no weapon, and was instituted by way of a misdemeanor complaint which by definition could not have included a "felony charge." Nor does counsel's correspondence to defendant meet the requirements of People v Saunders (supra), since neither of the two letters sent by counsel identifies in any manner the nature of or the risks inherent in raising any potential legal issue(s) on appeal (see People v Diaz, 127 AD2d 511, 512 [1987]).

While we express no opinion with respect to the merits, or lack thereof, of any possible issue(s), counsel's present submission does not adequately show that a conscientious examination of the record was undertaken (see People v Reyes, 302 AD2d 322 [2003]) or that counsel effectively communicated to defendant the substance of the brief, the nature of the "viable issue" referenced therein, or the risks involved in pursuing any such issue on appeal (see People v Calderon, 107 AD3d 470 [2013]). The uncertainty thus created "raises ambiguities failing to meet the requirements" of the Anders rule (see People v Calderon, 107 AD3d at 470 [*2][2013]; People v Wright, 43 Misc 3d 17 [2014]; see also People v Benitez, 82 AD2d 726 [1981]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 16, 2014