Opinion
110509
09-23-2021
The PEOPLE of the State of New York, Respondent, v. Skylar WEST, Appellant.
Thomas J. Butler, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Thomas J. Butler, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 2, 2018, convicting defendant upon his plea of guilty of the crime of gang assault in the first degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to gang assault in the first degree. As part of the plea agreement, defendant was required to waive his right to appeal and executed a written waiver of appeal. In exchange, defendant was promised a prison sentence of no less than seven years and no more than 10 years, to be followed by five years of postrelease supervision. County Court thereafter declined to adjudicate defendant as a youthful offender and imposed a prison sentence of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.
Although the plea agreement contemplated that defendant's sentence was to be served consecutively to a prior undischarged term of imprisonment, County Court did not direct such at the time of sentencing. As such, defendant's 10–year determinate sentence must run concurrently with his prior undischarged term of imprisonment (see Penal Law § 70.25[1][a] ).
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. Upon our review of the record and defense counsel's brief, we disagree. We find that there is an issue of arguable merit with respect to the validity of defendant's appeal waiver that may potentially impact other issues that may be raised, such as the denial of youthful offender adjudication and the severity of the sentence (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Pacherille, 25 N.Y.3d 1021, 10 N.Y.S.3d 178, 1023–1024, 32 N.E.3d 393 [2015] ; People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [2021] ; People v. Wimberly, 194 A.D.3d 1122, 1123, 143 N.Y.S.3d 620 [2021] ; People v. Turner, 166 A.D.3d 1074, 1075, 85 N.Y.S.3d 288 [2018] ). Accordingly, without passing judgment on the ultimate merit of these issues, we grant counsel's application for leave to withdraw and assign new counsel to address these issues and any others that the record may disclose (see People v. Beaty, 22 N.Y.3d 490, 492–493, 982 N.Y.S.2d 820, 5 N.E.3d 983 [2014] ; People v. Stokes, 95 N.Y.2d 633, 638–639, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ; see generally 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] ).
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.