State of New York Supreme Court, Appellate Division Third Judicial Department
September 23, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ANTHONY CARROWAY, APPELLANT.
Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered December 9, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.
MEMORANDUM AND ORDER
Calendar Date: August 2, 2010
Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.
Defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and was sentenced in accordance with the plea agreement as a second felony offender to five years in prison followed by three years of postrelease supervision. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the basis that there are no non-frivolous issues to be advanced on appeal. We disagree. After a review of the record, we find at least one issue of arguable merit pertaining to the severity of the sentence imposed. As a result, and without passing judgment on the ultimate merit of that issue, counsel's application to withdraw is granted and new counsel is assigned to address that issue and any other issues that the record may disclose (see People v Gatten, 74 AD3d 1578 ; People v Estreme, 43 AD3d 1207, 1208 ).
Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
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