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The People of the State of v. Christian J. Smith

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


December 29, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CHRISTIAN J. SMITH, APPELLANT.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered July 2, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

MEMORANDUM AND ORDER

Calendar Date: November 2, 2011

Before: Mercure, Acting P.J., Spain, Kavanagh, McCarthy and Garry, JJ.

In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree. In accordance with the terms of the plea agreement, he was sentenced to seven years in prison to be followed by five years of postrelease supervision. Defendant 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 one issue of arguable merit pertaining to the severity of the sentence that warrants further review. Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's application and assign new counsel to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Garren, 74 AD3d 1578 [2010]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Mercure, Acting P.J., Spain, Kavanagh, McCarthy and Garry, 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

20111229

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