State of New York Supreme Court, Appellate Division Third Judicial Department
August 2, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
EDWARD O. LEWIS II, APPELLANT.
Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered March 18, 2010, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.
MEMORANDUM AND ORDER
Calendar Date: June 6, 2012
Before: Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of attempted burglary in the third degree. He thereafter pleaded guilty to that charge and also waived his right to appeal orally and in writing. Subsequently, in accordance with the terms of the plea agreement, defendant was sentenced to, among other things, time served and five years of probation. Upon his appeal, defense counsel seeks to be relieved of his assignment on the ground that no non-frivolous issue can be raised. Upon our review of the record, we disagree. Given, among other things, defendant's protestation of innocence while addressing County Court at sentencing and certain mental health issues raised in the presentence report, we find that the record reveals the existence of issues that cannot be characterized as wholly frivolous. Without expressing any opinion as to the ultimate merit of any potential arguments, defense counsel's application to be relieved of his assignment is granted and new counsel will be assigned to address any issues that the record may disclose (see People v Stokes, 95 NY2d 633, 636 ; People v Cruwys, 113 AD2d 979, 980 , lv denied 67 NY2d 650 ).
Rose, J.P., Lahtinen, 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.
Robert D. Mayberger
Clerk of the Court
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