People v Flores (David)

[*1] People v Flores (David) 2021 NY Slip Op 51193(U) Decided on December 9, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
2019-1558 P CR

The People of the State of New York, Respondent,

against

David Flores, Appellant.

John P. Savoca, for appellant. Putnam County District Attorney, for respondent (no brief filed).

Appeal from a judgment of the Justice Court of the Town of Southeast, Putnam County (Gregory Folchetti, J.), rendered March 21, 2019. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth 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;

Steven A. Feldman, Esq.1129 Northern Blvd.Suite 404Manhasset, NY 11030.
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 order and 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.

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 [*2][1967]). A review of the record, however, reveals at least two nonfrivolous issues, i.e., (1) whether the charge to which defendant pleaded guilty was facially sufficient and (2) whether the plea colloquy was infirm, rendering defendant's plea unknowing, unintelligent or involuntary. We note that, assuming without deciding that the written waiver of appeal is valid in this case, both these issues are exempt from the waiver (see People v Henriquez, 73 Misc 3d 126[A], 2021 NY Slip Op 50875[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2021] [facial insufficiency]; People v Ayala, 55 Misc 3d 150[A], 2017 NY Slip Op 50755[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [plea]).

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 issues set forth above, and to prosecute the appeal on defendant's behalf with respect to these, or any other, issues that can be identified.

RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2021