People v Ramirez (Manuel)

[*1] People v Ramirez (Manuel) 2020 NY Slip Op 51568(U) Decided on December 30, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-376 K CR

The People of the State of New York, Respondent,

against

Manuel Tzep Ramirez, Appellant.

Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered January 16, 2018. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the second degree. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), seeking leave to withdraw as counsel.

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;

Appellate Advocates

111 John Street, 9th Floor

New York, NY 10038.

Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel. New counsel is directed to serve and file a brief within 90 days after the date of this decision and order. 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.

Assigned counsel submitted an Anders brief setting forth the 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 at least one nonfrivolous issue, i.e., whether the factual allegations of the accusatory instrument are legally insufficient to support the added misdemeanor charge of aggravated unlicensed operation of a motor vehicle in the second degree, to which defendant pleaded guilty, and, if so, whether the accusatory instrument cannot be [*2]salvaged, despite the existence, arguendo, of a facially sufficient charge of equal degree therein (compare People v Perez, 64 Misc 3d 84 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], with People v Thiam, 34 NY3d 1040 [2019]). We note that defendant's purported waiver of his right to appeal, if valid, "would not bar [this] claim because the claim is jurisdictional" (People v Davis, 31 Misc 3d 142[A], 2011 NY Slip Op 50844[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).

Accordingly, we hold the appeal in abeyance, grant assigned counsel's application to withdraw as counsel and assign new counsel to ascertain whether defendant desires to raise the issue set forth above, and to prosecute the appeal on defendant's behalf with respect to this issue or any other issue that can be identified.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 30, 2020