Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 14, 2010, convicting defendant upon his plea of guilty of the crime of attempted criminal sexual act in the first degree.
Calendar Date: September 26, 2012
Before: Lahtinen, J.P., Spain, Kavanagh, McCarthy and Garry, JJ.
In satisfaction of a three-count indictment, defendant pleaded guilty to attempted criminal sexual act in the first degree. Under the terms of the plea agreement, he was to be sentenced as a second felony offender to 10 years in prison, to be followed by 10 years of postrelease supervision. Defendant was sentenced accordingly and 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. Based upon our review of the record, we disagree. We find at least 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 ; People v Garren, 74 AD3d 1578 ; People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ).
Lahtinen, J.P., 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.
Robert D. Mayberger Clerk of the Court
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