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People v. LoBello

Appellate Division of the Supreme Court of New York, Fourth Department
May 27, 1988
140 A.D.2d 927 (N.Y. App. Div. 1988)

Opinion

May 27, 1988

Appeal from the Supreme Court, Erie County, Marshall, J.

Present — Dillon, P.J., Boomer, Pine, Balio and Lawton, JJ.


Case held, decision reserved, motion to relieve counsel's assignment granted, and new counsel to be assigned. 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 A.D.2d 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 A.D.2d 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.


Summaries of

People v. LoBello

Appellate Division of the Supreme Court of New York, Fourth Department
May 27, 1988
140 A.D.2d 927 (N.Y. App. Div. 1988)
Case details for

People v. LoBello

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH A. LoBELLO…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 27, 1988

Citations

140 A.D.2d 927 (N.Y. App. Div. 1988)