People v. LoBello

Memorandum: Defendant’s attorney has moved to be relieved as assigned counsel on the ground that the appeal is frivolous (see, People v Crawford, 71 AD2d 38). We find that nonfrivolous arguments for reversal of defendant’s conviction exist, and we therefore assign new counsel to submit briefs before considering the appeal (see, People v Gaines, 122 AD2d 565). Although defendant has served his sentence, the plea transcript indicates that, after a felony complaint had been dismissed in Town Court, defendant orally consented to a superior court Judge sitting as a local criminal court and arraigning him on a superior court information. However, the only accusatory instrument in the record before us is a document entitled superior court information but charging violation of Penal Law § 120.20, a misdemeanor. On arraignment, the court stated that the information charged defendant with violation of Penal Law § 120.20. The court told defendant he was entitled to a preliminary hearing. Defendant waived a preliminary hearing and consented to be held for action of a Grand Jury. He then executed a waiver of indictment and a consent to be prosecuted on a superior court information, to which he pleaded guilty.

We appoint new counsel to address, inter alia, the effect of the dismissal of the felony complaint in Town Court; whether a new action was properly commenced (see, CPL 100.05); the applicability of CPL 195.10 to a superior court information charging one misdemeanor; and whether defendant could validly consent to be held for action of a Grand Jury within the meaning of CPL 195.10 (1) on these facts. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — reckless endangerment, second degree.) Present — Dillon, P. J., Boomer, Pine, Balio and Lawton, JJ.