Opinion
2014-07-24
The PEOPLE of the State of New York, Respondent, v. Juan Stephan McCRAY, Appellant.
G. Scott Walling, Queensbury, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
G. Scott Walling, Queensbury, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered August 13, 2010, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and assault in the first degree.
In satisfaction of a 16–count indictment, defendant pleaded guilty to burglary in the first degree and assault in the first degree and waived his right to appeal. In accordance with the plea agreement, County Court agreed to sentence defendant, as a persistent violent felony offender, to concurrent prison terms of 22 years to life. Defendant now appeals.
Appellate counsel for defendant seeks to be relieved of his assignment 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, however, we perceive at least one issue of arguable merit pertaining to the validity of defendant's appeal waiver which, in turn, may affect other potential issues ( see People v. Slavin, 114 A.D.3d 1082, 1082, 980 N.Y.S.2d 846 [2014];People v. March, 107 A.D.3d 1160, 1161, 966 N.Y.S.2d 696 [2013] ). Thus, without offering any opinion as to the ultimate merit of that argument, we grant counsel's application and assign new counsel to address this issue and any others that the record may disclose ( see People v. Stokes, 95 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985],lv. denied67 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. PETERS, P.J., STEIN, GARRY, ROSE and LYNCH, JJ., concur.