Opinion
No. 100074.
August 9, 2007.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 16, 2005, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.
Martin J. Kehoe III, Albany, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ., concur.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to three years in prison, to be followed by two years of postrelease supervision, prompting this appeal.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, we find at least one issue of arguable merit relating to the severity of the sentence. Accordingly, without passing judgment on the ultimate merit of this issue, counsel's application to be relieved of his assignment is granted and new counsel shall be assigned to address this issue, as well as any other nonfrivolous issues that the record may disclose ( see People v Stokes, 95 NY2d 633; People v Smith, 32 AD3d 553; People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).
Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.