Opinion
November 22, 2000.
Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered June 18, 1999, upon a verdict convicting defendant of two counts of the crime of sodomy in the second degree.
Bernice R. Dozoretz, Binghamton, for appellant.
Gerald F. Mollen, District Attorney (Robert A. Sharpe of counsel), Binghamton, for respondent.
Before: Crew III, J.P., Spain, Carpinello, Graffeo and Lahtinen, JJ.
MEMORANDUM AND ORDER
On October 7, 1998, a Grand Jury returned a four-count indictment against defendant charging him with two counts of sodomy in the second degree and two counts of sodomy in the third degree. The charges arise from four incidents, two that occurred during July 1997 and two that occurred in the winter and early spring of 1998, wherein defendant was accused of engaging in sexual acts with his girlfriend's (hereinafter the victim) grandson. Defendant had given an oral statement to police, later reduced to writing and signed by him, admitting to engaging in sexual conduct with the victim on two occasions during the summer of 1997.
At trial, the victim testified that he went to defendant's house in the spring of 1998 and that defendant told him to go into the bedroom and wait for him. Defendant directed the victim to take down his pants and bend over, then subjected the victim to sexual contact. The victim further testified that that winter (after his 14th birthday) and twice during the preceding summer, he was similarly abused. After a jury trial, defendant was convicted of two counts of sodomy in the second degree (see, Penal Law § 130.45) but acquitted of sodomy in the third degree (see, Penal Law § 130.40). This appeal ensued.
Defense counsel seeks to be relieved of her assignment as counsel for defendant on the ground that no nonfrivolous issues can be raised on appeal. Our review of the record indicates at least one potential nonfrivolous issue, namely, whether defendant's conviction was against the weight of the evidence. Accordingly, we will assign new counsel to represent defendant on appeal and grant defense counsel's application to be relieved of her assignment (see, People v. Garnett, 274 A.D.2d 667, 711 N.Y.S.2d 208).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.