Opinion
KA 00-02285
February 7, 2003.
(Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Sexual Abuse, 1st Degree.)
PRESENT: GREEN, J.P., PINE, HURLBUTT, KEHOE, AND HAYES, JJ.
Case held, decision reserved, motion to relieve counsel of assignment granted, and new counsel to be assigned.
Memorandum:
Defendant was convicted upon his plea of guilty of sexual abuse in the first degree (two counts) (Penal Law § 130.65) and rape in the third degree (§ 130.25). He was sentenced to consecutive, determinate terms of imprisonment of seven years for sexual abuse and a consecutive, indeterminate term of 1a to 4 years for rape.
Defendant's assigned counsel has moved to be relieved of the assignment pursuant to People v. Crawford ( 71 A.D.2d 38), and he has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court's consideration. The aggregate sentence of 15a to 18 years is the statutory maximum.
The plea agreement did not include a negotiated sentence.
Because Supreme Court did not advise defendant of the potential maximum terms of incarceration, the waiver by defendant of the right to appeal does not encompass a challenge to the severity of the sentence (see People v. Cormack, 269 A.D.2d 815; People v. Wynn, 262 A.D.2d 1052). Therefore, a nonfrivolous issue exists concerning whether the sentence is unduly harsh or severe. Thus, we relieve counsel of his assignment and assign new counsel to brief that issue as well as any other issues that counsel's review of the record may disclose.