Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered May 26, 2010, convicting defendant upon his plea of guilty of the crime of possessing a sexual performance by a child (three counts).
Calendar Date: February 21, 2012
Before: Rose, J.P., Lahtinen, Kavanagh, Stein and Egan Jr., JJ.
Defendant was charged in an indictment with three counts of possessing a sexual performance by a child and pleaded guilty to all of the charges shortly after County Court denied his request for a Mapp hearing. Under the terms of the plea agreement, defendant was to be sentenced to no more than 2 to 4 years in prison on each count, to run consecutively to one another and concurrently to the sentence imposed on a prior conviction. Defendant was ultimately sentenced to 11/2 to 3 years on each count, for an aggregate prison term of 41/2 to 9 years, to run concurrently to the prior sentence. He 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. However, it appears that defendant's plea was conditioned upon his right to appeal County Court's decision denying his requested Mapp hearing. This issue was not addressed by appellate counsel. Therefore, we can not agree that there are no non-frivolous issues to be raised on appeal. Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's application 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, 634 ; People v Garren, 74 AD3d 1578 ; People v Cruwys, 113 AD2d 979, 980 , lv denied 67 NY2d 650 ).
Rose, J.P., Lahtinen, Kavanagh, Stein and Egan Jr., 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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