Opinion
2011-12-29
The PEOPLE of the State of New York, Respondent, v. Christian J. SMITH, Appellant.
George P. Ferro, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira, for respondent.
George P. Ferro, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira, for respondent.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered July 2, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree. In accordance with the terms of the plea agreement, he was sentenced to seven years in prison to be followed by five 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 to be raised on appeal. Based upon our review of the record, we disagree. We find one issue of arguable merit pertaining to the severity of the sentence that warrants further review. Accordingly, without passing judgment on the ultimate merit of this issue, 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, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001]; People v. Garren, 74 A.D.3d 1578, 902 N.Y.S.2d 440 [2010]; People v. Cruwys, 113 A.D.2d 979, 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] ).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.