Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Carl L. WARNER, Appellant.
David M. Giglio, Utica, for appellant.
William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.
Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered March 24, 2010, which resentenced defendant following his conviction of the crimes of rape in the first degree (two counts), sexual abuse in the first degree and endangering the welfare of a child (two counts).
Defendant was convicted following a jury trial of two counts of rape in the first degree, sexual abuse in the first degree and two counts of endangering the welfare of a child, and was sentenced to an aggregate prison term of 47 years (69 A.D.3d 1052, 893 N.Y.S.2d 359 [2010], lv. denied 14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ). On appeal, this Court modified the judgment of conviction by vacating defendant's sentence because a mandatory period of postrelease supervision had not been imposed, and remitted the matter to County Court for resentencing ( id. at 1054, 893 N.Y.S.2d 359). Following a hearing, County Court resentenced defendant to the original term of imprisonment, 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. Upon our review of the record and defense counsel's brief, we conclude that there are issues of “arguable merit” ( 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] ), including whether the sentence imposed was harsh or excessive ( see People v. Chandler, 87 A.D.3d 756, 757, 927 N.Y.S.2d 808 [2011]; People v. Long, 40 A.D.3d 1146, 1147, 833 N.Y.S.2d 418 [2007] ). Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's request for leave 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, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001]; People v. Cruwys, 113 A.D.2d at 980, 493 N.Y.S.2d 653).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
MERCURE, J.P., SPAIN, LAHTINEN, KAVANAGH and McCARTHY, JJ., concur.