Opinion
2012-04-12
The PEOPLE of the State of New York, Respondent, v. Michael VANNESS, Appellant.
Gregory T. Rinckey, Albany, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Gregory T. Rinckey, Albany, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered January 13, 2010, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, disseminating indecent material to a minor in the first degree and endangering the welfare of a child (two counts).
Defendant was charged in an indictment with burglary in the second degree, disseminating indecent material to a minor in the first degree and two counts of endangering the welfare of a child. Rather than proceed to trial, he pleaded guilty to all of the charges. In exchange, he was to be sentenced to no more than 12 years and no less than 8 years in prison under the terms of the plea agreement. Following the plea proceedings, County Court advised defendant that it would also impose upon him a 10–year period of postrelease supervision that it had neglected to mention previously and gave defendant the opportunity to withdraw his plea, which he declined. Thereafter, County Court sentenced defendant as a second felony offender to concurrent prison terms of 12 years on the burglary conviction and 3 1/2 to 7 years on the indecent material conviction, and one year in jail on the two endangering convictions, to be followed by 10 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, counsel's brief and the People's response, we disagree. We find at least one issue of arguable merit pertaining to the severity of the sentence that warrants further examination. Therefore, without passing judgment on the ultimate merit of this issue, we grant counsel's application to withdraw 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, 634, 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, 980, 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.