People v. Rivas-Morales (Victor)

People v Rivas-Morales (2022 NY Slip Op 51358(U)) [*1] People v Rivas-Morales (Victor) 2022 NY Slip Op 51358(U) [77 Misc 3d 137(A)] Decided on December 22, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2021-311 N CR The People of the State of New York, Respondent, against Victor Rivas-Morales, Appellant. Langone & Associates, PLLC (Richard M. Langone of counsel ), for appellant. Nassau County District Attorney (Jared A. Chester of counsel), for respondent. Appeal from two judgments of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), rendered May 25, 2021. Each judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposed sentence. 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 to prosecute the appeal; Andrew E. MacAskill, Esq. 355 Post Avenue, Suite 201 Westbury, NY 11590, 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 [1967]). A review of the record, however, reveals the existence of a possible nonfrivolous issue, i.e., whether defendant waived his right to be prosecuted by an information (see CPL 170.65; People v Tyrell, 22 NY3d 359 [2013]; People v Connor, 63 NY2d 11 [1984]; People v White, 51 Misc 3d 137[A], 2016 NY Slip Op 50574[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). We, therefore, hold the appeal in abeyance, grant assigned counsel's application to withdraw as counsel, and assign new counsel, pursuant to article 18-B of the County Law, 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. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 22, 2022