Opinion
110336
04-16-2020
The PEOPLE of the State of New York, Respondent, v. Salvatore CUPPUCCINO, Appellant.
G. Scott Walling, Slingerlands, for appellant, and appellant pro se. J. Anthony Jordan, District Attorney, Ford Edward (Taylor Fitzsimmons of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant, and appellant pro se.
J. Anthony Jordan, District Attorney, Ford Edward (Taylor Fitzsimmons of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER
In December 2016, while serving a term of imprisonment, defendant was found to be in possession of a sharpened object. In August 2017, he was charged in an indictment with promoting prison contraband in the first degree. The indictment was later amended and, in satisfaction thereof, he pleaded guilty to attempted promoting prison contraband in the first degree. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 1½ to 3 years in prison, to run consecutively to the sentence that he was then serving. Defendant appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues that may be raised on appeal. Based upon our review of the record, counsel's brief, the People's brief and defendant's pro se supplemental brief, we disagree. Defendant's pro se contentions concerning the denial of his right to a speedy trial and trial counsel's failure to seek dismissal of the indictment on this ground warrant further consideration (see People v. Green, 138 A.D.3d 1312, 1313, 30 N.Y.S.3d 373 [2016] ; People v. Hernandez, 12 A.D.3d 723, 723, 783 N.Y.S.2d 481 [2004] ). Accordingly, without passing judgment on the ultimate merit of these issues or any others, 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] ).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
Garry, P.J., Egan Jr., Clark, Aarons and Colangelo, JJ., concur.