Opinion
110288
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Jermaine M. JONES, Appellant.
Shane A. Zoni, Public Defender, Hudson (Bryan Bergeron of counsel), for appellant. Paul Czajka, District Attorney, Hudson (Kevin B. Thiemann of counsel), for respondent.
Shane A. Zoni, Public Defender, Hudson (Bryan Bergeron of counsel), for appellant.
Paul Czajka, District Attorney, Hudson (Kevin B. Thiemann of counsel), for respondent.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered March 8, 2018, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
Defendant pleaded guilty to a superior court information charging him with assault in the second degree and he was required to waive the right to appeal. County Court sentenced defendant to seven years in prison, to be followed by two 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 that can be raised on appeal. Upon our review of the record and counsel's brief, we disagree. We find there is at least one 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 severity of the sentence (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's application for leave to withdraw and assign new counsel to address this issue 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] ).
Garry, P.J., Lynch, 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.