Opinion
570059/04
Decided June 27, 2005.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered October 23, 2003 after a nonjury trial (Salvatore Modica, J.) convicting him of attempted endangering the welfare of a child (Penal Law §§ 110.00/260.10[1]) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Appeal from judgment of conviction rendered October 23, 2003 (Salvatore Modica, J.) held in abeyance, counsel's application to be relieved of assignment granted and new counsel to be assigned.
Before: PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
This criminal prosecution stems from allegations that defendant made a series of sexually explicit statements and propositions to the complainant, his stepdaughter, and twice touched her vaginal area between July 2000 and November 2000. The People's trial presentation consisted solely of the testimony of the then 17-year old complainant, who could not recall when she first told anyone about the defendant's misconduct and who readily acknowledged that the incidents were not reported to the police until after she told her stepmother about them some time in 2003. In addition to defendant's own testimony denying the complainant's allegations, the defense elicited the testimony of the complainant's mother who, although reluctant "to choose sides" in the case, stated that the complainant was in Las Vegas staying with a relative throughout July of 2000, during which time the initial episode of abuse allegedly took place. After a bench trial, defendant was convicted of attempted child endangerment ( see Penal Law §§ 110.00/260.10[1]) and second-degree harassment ( see Penal Law § 240.26) but acquitted of attempted sexual abuse in the second degree ( see Penal Law §§ 110.00/130.60[2]). This appeal ensued.
Defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that no nonfrivolous issues can be raised on appeal. Our review of the record discloses at least one potential issue of arguable merit, 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 his assignment ( see People v. Grier, 277 AD2d 720).
This constitutes the decision and order of the court. I concur.