People v Thompson (Annetta)

[*1] People v Thompson (Annetta) 2010 NY Slip Op 50893(U) [27 Misc 3d 138(A)] Decided on May 17, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-604 W CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Annetta Thompson, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Charles Wood, J.), rendered February 17, 2009. The judgment convicted defendant, upon her plea of guilty, of assault in the third degree.

ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-b of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.

Assigned counsel submitted an Anders brief setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal (see Anders v California, 386 US 738 [1967]). A review of the record, however, reveals the existence of at least one nonfrivolous issue. Defendant was originally charged by felony complaint with assault in the second degree (Penal Law § 120.05 [2]). The charge was subsequently purportedly reduced to assault in the third degree, a misdemeanor (see Penal Law § 120.00 [1]). Defendant pleaded guilty to the misdemeanor. A nonfrivolous issue exists as to whether the felony complaint was properly converted to a misdemeanor complaint so as to effectuate the reduction of the felony charge (see CPL 180.50 [3] [b]; 180.50 [3] [a] [iii] [together providing for reduction of a felony charge [*2]through conversion of the felony complaint to a misdemeanor complaint by means of "notations upon or attached (to the felony complaint) which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged" (CPL 180.50 [3] [b])]; People v Okura, 23 Misc 3d 129[A], 2009 NY Slip Op 50646[U] [App Term, 9th & 10th Jud Dists 2009]; People v Dyson, 19 Misc 3d 139[A], 2008 NY Slip Op 50900[U] [App Term, 9th & 10th Jud Dists 2008]; People v Reesa W., 18 Misc 3d 128[A], 2007 NY Slip Op 52436[U] [App Term, 9th & 10th Jud Dists 2007]; cf. People v Hunter, 5 NY3d 750, 751-752 [2005]; People v Ackridge, 16 Misc 3d 127[A], 2006 NY Slip Op 52596[U] [App Term, 9th & 10th Jud Dists 2006]).

We therefore grant assigned counsel's motion to withdraw as counsel, and, in light of the risk inherent in this issue (see People v Spooner, 22 Misc 3d 136[A], 2008 NY Slip Op 52664[U] [App Term, 9th & 10th Jud Dists 2008]), assign new counsel to ascertain whether defendant desires to raise the issue and to prosecute the appeal on defendant's behalf accordingly.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: May 17, 2010