Opinion
No. 16700.
May 3, 2007.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered November 10, 2005, which revoked defendant's probation and imposed a sentence of imprisonment.
Michael P. Graven, Owego, for appellant.
David S. Hartnett, District Attorney, Cortland (Wendy L. Franklin of counsel), for respondent.
Before: Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur.
In 2004, defendant was convicted of rape in the third degree and sentenced to six months in jail as well as 10 years of probation. In September 2005, he was charged with violating four conditions of his probation. He was found guilty of the charges following a hearing and his probation was revoked. He was then resentenced to 11/3 to 4 years in prison. Defendant now 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 and defense counsel's brief, there are potential nonfrivolous issues that are of "arguable merit" ( People v Cruwys, 113 AD2d 979, 980, lv denied 67 NY2d 650; see People v Stokes, 95 NY2d 633), including whether the sentence imposed was harsh and excessive ( see People v Provost, 20 AD3d 821; see e.g. People v Hatalsky, 17 AD3d 782; People v Venable, 16 AD3d 771). Therefore, we will grant defense counsel's application to be relieved of his assignment and assign new counsel to represent defendant to raise any issues the record may disclose ( see People v Stokes, supra; People v Cruwys, supra).
Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.