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The People of the State of New York v. andrew Mcquality

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


November 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANDREW MCQUALITY, APPELLANT.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered January 26, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

MEMORANDUM AND ORDER

Calendar Date: September 26, 2012

Before: Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal possession of a weapon in the third degree, theft of services and criminal simulation. He pleaded guilty to criminal possession of a weapon in the third degree in satisfaction of these and other pending charges, and also waived his right to appeal. The waiver expressly exempted constitutional issues and challenges to the sentence. Under the terms of the plea agreement, defendant was to receive a split sentence of five years of probation and six months in jail, to run consecutively to a sentence that he was serving on a probation violation. He was sentenced accordingly, and the court further imposed an order of protection directing defendant to stay away from his spouse and children until November 2018. He now appeals.

Appellate counsel seeks to be relieved of her 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 order of protection imposed in connection with the sentence (see e.g. People v Smith, 90 AD3d 1417, 1417-1418 [2011]). Accordingly, without passing 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 Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, 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

20121121

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