Opinion
110101
07-21-2022
The PEOPLE of the State of New York, Respondent, v. Tyrone MCMILLIAN, Appellant.
Gail B. Rubenfeld, Monticello, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Gail B. Rubenfeld, Monticello, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered December 15, 2017, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.
Defendant was charged by indictment with aggravated family offense (two counts) and criminal contempt in the first degree. Defendant was assigned counsel, and subsequently requested the assignment of new counsel, which was denied by County Court. Defendant thereafter pleaded guilty to criminal contempt in the first degree and purportedly waived the right to appeal. Defendant was sentenced, as a prior felony offender, to a prison term of 2 to 4 years. Defendant appeals.
Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues that may be raised on appeal. Based upon our review of the record, we find issues of arguable merit pertaining to the validity of the waiver of the right to appeal that may impact other issues that may be raised (see People v. McCray, 119 A.D.3d 1235, 1235, 989 N.Y.S.2d 403 [2014] ), such as whether County Court conducted an adequate inquiry before denying defendant's request for new counsel ( People v. Morehouse, 140 A.D.3d 1202, 1203, 33 N.Y.S.3d 491 [2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ; People v. Stevenson, 112 A.D.3d 989, 990–991, 976 N.Y.S.2d 304 [2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ). Accordingly, without passing judgment on the ultimate merit of any issues, we grant counsel's application for leave to withdraw and assign new counsel to address these issues 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, lv denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ).
Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, JJ., concur. ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.