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The PEOPLE of the State of New York, Respondent, v. Manuel Tzep RAMIREZ, Appellant.
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;
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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 U.S. 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 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.
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Docket No: 2018-376 K CR
Decided: December 30, 2020
Court: Supreme Court, Appellate Term, New York.
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