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The People of the State of New York v. Malcolm Chandler

State of New York Supreme Court, Appellate Division Third Judicial Department


August 4, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MALCOLM CHANDLER, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered September 9, 2008, upon a verdict convicting defendant of the crimes of assault in the second degree, resisting arrest and aggravated unlicensed operation of a motor vehicle in the second degree.

MEMORANDUM AND ORDER

Calendar Date: June 8, 2011

Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Egan Jr., JJ.

Police officers attempted to stop defendant while he was driving in the City of Schenectady, Schenectady County. However, defendant evaded police and a foot chase ensued, during which one of the officers fell and was injured. Defendant was thereafter charged in a three-count indictment with assault in the third degree, resisting arrest and aggravated unlicensed operation of a motor vehicle in the second degree. Following a jury trial, defendant was found guilty of all three charges and County Court sentenced him as a second felony offender to five years in prison. Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that no non-frivolous issues exist to be raised on appeal. Defendant submitted a pro se letter to this Court raising several issues and requesting that new counsel be assigned. Upon our review of the record, counsel's brief and defendant's pro se submission, we find that there are issues of arguable merit, including County Court's discretionary ruling limiting counsel's cross-examination of the victim (see People v Richardson, 28 AD3d 1002, 1004 [2006], lv denied 7 NY3d 817 [2006]; People v Roberts, 12 AD3d 835, 838 [2004], lv denied 4 NY3d 802 [2005]), the weight or legal sufficiency of the evidence adduced at trial (see People v Winchester, 14 AD3d 939, 941 [2005]; People v Porter, 305 AD2d 933, 933-934 [2003], lv denied 100 NY2d 586 [2003]) and whether the sentence imposed should be reduced in the interest of justice (see People v Brodus, 307 AD2d 643, 644 [2003], lv denied 100 NY2d 618 [2003]; People v Porter, 305 AD2d at 933-934). Accordingly, without expressing any opinion as to the merit of any issue, counsel's application to be relieved of his assignment is granted and new counsel will be assigned to address these issues and any other issues that the record may disclose (see People v Boodrow, 30 AD3d 680, 681 [2006]; People v Terry, 28 AD3d 797, 798 [2006]).

Mercure, J.P., Peters, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

ENTER:

Robert D. Mayberger Clerk of the Court

20110804

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