Opinion
No. 101393.
March 12, 2009.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered October 9, 2007, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.
Campbell H. Wallace, Albany, for appellant, and appellant pro se.
Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ.
Defendant pleaded guilty to an indictment charging him with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. The plea agreement did not include a recommended sentence and, instead, left the matter to the discretion of County Court. At the sentencing hearing, County Court heard arguments from the People and the defense and then sentenced defendant to five years in prison and two years of postrelease supervision for the conviction of criminal possession of a controlled substance in the third degree and three years in prison and two years of postrelease supervision for the conviction of criminal possession of a controlled substance in the fourth degree. The prison terms were ordered to run concurrently. Defendant now appeals.
Appellate counsel for defendant requests that he be relieved of his assignment on the basis that there are no nonfrivolous issues to be advanced on appeal. Having reviewed counsel's brief, defendant's pro se submission and the record, we disagree. There is at least one issue of arguable merit pertaining to the severity of the sentences imposed. Consequently, without passing any judgment on the ultimate merit of that issue, counsel's application to withdraw is granted and new counsel is assigned to address that issue and any other issues that the record may disclose ( see People v Stokes, 95 NY2d 633; People v Valentin, 51 AD3d 1138; People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).
Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.