Opinion
2013-05-16
The PEOPLE of the State of New York, Respondent, v. Stanley WHITTED, Appellant.
Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 14, 2010, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to attempted burglary in the second degree and waived his right to appeal. In accord with the plea agreement, he was sentenced as a second felony offender to 4 1/2 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.
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 disagree. We have identified one issue of arguable merit pertaining to the validity of defendant's waiver of the right to appeal that may have implications for other potential appellate issues ( see People v. Roche, 82 A.D.3d 1364, 1365, 918 N.Y.S.2d 390 [2011];People v. Morton, 45 A.D.3d 1191, 1191, 846 N.Y.S.2d 466 [2007] ). Therefore, without passing judgment upon 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. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985],lv. denied67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986];see generally People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
PETERS, P.J., ROSE, LAHTINEN and GARRY, JJ., concur.