5484B 2491 01 5484C v. <<

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York,—Respondent, 2490/01 5484B- 2491/01 5484C v.

5484– 5484A

Decided: June 30, 2011

Tom, J.P., Saxe, Catterson, Moskowitz, Acosta, JJ. Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts of counsel), for respondent.

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Judgments, Supreme Court, Bronx County (Troy K. Webber, J.), rendered February 18, 2003, convicting defendant upon his pleas of guilty, of murder in the second degree, robbery in the first degree (two counts) and promoting prison contraband in the first degree and sentencing him to an aggregate term of 16 years to life, unanimously modified, on the law, to the extent of vacating the sentence on the conviction of promoting prison contraband in the first degree, and substituting a term of 21/212 years to 5 years, and otherwise affirmed.

The People concede that defendant's determinate five-year sentence on his prison contraband conviction was improper.   The statute required an indeterminate term (see Penal Law § 70.06[2] ).

Application by appellant's counsel to withdraw as counsel as to the judgments rendered on the indictments other than indictment 40/02 is granted (see Anders v. California, 386 U.S. 738 [1967];  People v. Saunders, 52 A.D.2d 833 [1976] ).   We have reviewed the record and agree with appellant's assigned counsel that there are no nonfrivolous points which could be raised on this appeal as to those indictments.

Pursuant to Criminal Procedure Law § 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order.

Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK