Opinion
108855
11-08-2018
The PEOPLE of the State of New York, Respondent, v. Efrain J. ACEVEDO III, Appellant.
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman, Amsterdam of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman, Amsterdam of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered August 17, 2016, which, among other things, on a joint motion dismissed count 3 of the indictment charging defendant with criminal possession of marihuana in the fourth degree.
Defendant was charged in an indictment with criminal possession of a controlled substance in the third degree (counts 1 and 2), criminal possession of marihuana in the fourth degree (count 3) and criminally using drug paraphernalia in the second degree (count 4). Following a jury trial, he was acquitted of counts 1 and 4, but convicted of count 3. Although the jury was unable to reach a verdict on count 2, defendant was later convicted of this crime following a second jury trial. On appeal, this Court modified the judgment by reversing that part as convicted defendant of count 3 and affirming that part as convicted defendant of count 2, and remitted the matter for further proceedings ( 141 A.D.3d 843, 852, 35 N.Y.S.3d 752 [2016] ). Upon remittal, County Court dismissed count 3 upon the joint motion of the parties and reaffirmed the sentence imposed on count 2. Defendant appeals.
Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Upon reviewing the record and counsel's brief, we agree. Defendant was acquitted of counts 1 and 4, his conviction of count 2 was upheld on appeal and count 3 was dismissed. In view of this, there are no issues of arguable merit that may be raised on appeal. Accordingly, the judgment is affirmed and counsel's request for leave to withdraw is granted (see People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ; see generally People v. Beaty, 22 N.Y.3d 490, 982 N.Y.S.2d 820, 5 N.E.3d 983 [2014] ; People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ).
Garry, P.J., McCarthy, Egan Jr., Clark and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed, and application to be relieved of assignment granted.