M. Joe Landry, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady, for respondent.
Opinion
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 14, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree pursuant to a plea agreement that included a waiver of appeal. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon prison term of five years followed by three years of postrelease supervision. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our
review of the record and counsel's brief, we disagree. Our review of the record reveals an issue of arguable merit as to whether defendant validly waived his right to appeal that may, in turn, implicate other potential appellate issues (
see
People v. Stevens, 133 A.D.3d 1095, 1095,
19 N.Y.S.3d 444 [2015] ;
People v. Metayeo,
132 A.D.3d 1159, 1160,
18 N.Y.S.3d 362 [2015] ;
People v. Martin, 125 A.D.3d 1016, 1016,
999 N.Y.S.2d 765 [2015] ). Therefore, without expressing an opinion on the merits of any issue, we grant counsel's application for leave to withdraw and assign new counsel to address this issue and any others that the record may disclose (
see
People v. Stokes, 95 N.Y.2d 633,
722 N.Y.S.2d 217,
744 N.E.2d 1153 [2011] ;
People v. Cruwys, 113 A.D.2d 979,
493 N.Y.S.2d 653 [1985],
lv. denied
67 N.Y.2d 650,
499 N.Y.S.2d 1046,
490 N.E.2d 562 [1986] ).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
GARRY, J.P., EGAN JR., LYNCH, DEVINE and AARONS, JJ., concur.