Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered April 15, 2009, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree and criminally using drug paraphernalia in the second degree.
Calendar Date: April 6, 2011
Before: Rose, J.P., Lahtinen, McCarthy, Garry and Egan Jr., JJ.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree and criminally using drug paraphernalia in the second degree. Following a plea colloquy, County Court entered a guilty plea to the charges contained in the superior court information. In accordance with the plea agreement, defendant was sentenced as a second felony offender to four years in prison on the criminal sale charge, to be followed by three years of postrelease supervision, 2 to 4 years in prison on the criminal possession charge and one year in jail on the drug paraphernalia charge, all of which were to run concurrently. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no non-frivolous issues to be raised on appeal. Based upon our review of the record, we disagree. We find at least one issue of arguable merit pertaining to the sufficiency of defendant's guilty plea that warrants further consideration. Therefore, without passing judgment on the ultimate merit of this issue, we grant counsel's request 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 NY2d 633 ; People v Smith, 32 AD3d 553 ; People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ).
Rose, J.P., Lahtinen, McCarthy, Garry and Egan Jr., JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
Robert D. Mayberger Clerk of the Court
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