Opinion
2009-2299 Q CR.
Decided April 1, 2011.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered October 5, 2009. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.
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. New counsel is directed to file a brief within 90 days after the date of the order entered hereon and the People shall serve and file their brief within two weeks thereafter. Relieved counsel is directed to turn over all papers in her possession to the newly assigned counsel.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ.
Assigned counsel has submitted an Anders brief setting forth her conclusion that there exist no nonfrivolous issues that could be raised on appeal ( see Anders v California, 386 US 738). A review of the record, however, reveals the existence of at least one nonfrivolous issue as to whether the accusatory instrument is jurisdictionally defective. Defendant pleaded guilty to disorderly conduct in satisfaction of an accusatory instrument charging him with falsely reporting an incident in the third degree (Penal Law § 240.50). This subdivision provides:
"A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he:
. . .
3. Gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur . . ." (emphasis added).
There is a nonfrivolous argument that the factual allegations of the accusatory instrument here do not "provide reasonable cause to believe" (CPL 100.40 [b]; [4] [b]) that defendant made the alleged false report "[g]ratuitously" ( see People v Taylor, 79 AD3d 944 [2010, Leventhal, J., dissenting]; People v Clairborne, 36 AD2d 500, 501, revd on other grounds, 29 NY2d 950; cf. People v Li, 192 Misc 2d 380, 383-384 [Nassau Dist Ct 2002]).
Accordingly, appellate counsel's application to be relieved of her representation is granted and new counsel assigned to prosecute the appeal.
Pesce, P.J., Weston and Steinhardt, JJ., concur.