People v. Silva

People v Silva (2014 NY Slip Op 08374)

People v Silva

2014 NY Slip Op 08374

Decided on December 2, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 2, 2014
Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.

3425/09 13638A 160/10 13638

[*1] The People of the State of New York, Respondent,

v

Damian Silva, Defendant-Appellant.

Scott A. Rosenberg, The Legal Aid Society, New York (Eve Kessler of counsel) for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered January 24, 2011, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of 3½ years, with 5 years' postrelease supervision, unanimously affirmed. Appeal from judgment (same date, court and Justice), convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him to a concurrent term of one to three years, held in abeyance, motion by assigned counsel to be relieved denied without prejudice to renewal, and counsel directed to communicate with defendant forthwith concerning any issues that may be raised on appeal and the possible consequences of pursuing an appeal raising such issues, and advising defendant that he has 60 days from the date of this order to file a pro se supplemental brief.

Defendant pleaded guilty under two indictments, which were apparently consolidated for purposes of disposition, and defendant filed a single notice of appeal, which this Court deemed timely. Nevertheless, assigned appellate counsel requests permission to withdraw as counsel regarding the appeal from the burglary conviction only, asserting that there are no nonfrivolous points which could be raised as to that conviction. (see Anders v California, 386 U.S. 738 [1967]; People v Saunders, 52 AD2d 833 [1st Dept 1976]). Having chosen to treat the convictions separately, and to invoke the Anders/Saunders procedure as to the burglary conviction, counsel is obligated to demonstrate to this Court that defendant was provided with a copy of the appellate brief and was informed of counsel's intention to seek withdrawal and defendant's right to file a pro se brief.

Appellate counsel does not seek permission to withdraw regarding the attempted robbery conviction. We conclude that defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248 [2006]), which forecloses his excessive sentence claim. Regardless of whether defendant made a valid waiver of his right to appeal, we perceive no basis for reducing defendant's period of postrelease supervision.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 2, 2014

CLERK