People v. Haney

Richard V. Manning, Parishville, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan Becker of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.

LAHTINEN, J.P.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered August 22, 2011, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

In satisfaction of an indictment charging him with various sex offenses, defendant pleaded guilty to one count of sexual abuse in the first degree and purportedly waived his right to appeal. Defendant was thereafter sentenced, in accordance with the plea agreement, to a prison term of three years to be followed by postrelease supervision of three years.

Appellate counsel seeks to be relieved of his assignment of representing defendant upon the ground that there are no nonfrivolous issues to be raised on appeal. After reviewing the record and counsel's brief, we disagree. An issue of arguable merit exists with regard to the validity of defendant's appeal waiver that may, in turn, affect the viability of other potential appellate issues ( see People v. Leone, 90 A.D.3d 1415, 1416, 934 N.Y.S.2d 875 [2011];People v. Roche, 82 A.D.3d 1364, 1365, 918 N.Y.S.2d 390 [2011] ). Counsel's request for leave to withdraw is accordingly granted, and new counsel will be assigned to address that issue and any others that may be disclosed by the record ( see People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985],lv. denied67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986];see generally People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ).

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned. McCARTHY, GARRY and EGAN JR., JJ., concur.