People v. Merritt

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered July 13, 2007, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the third degree and criminal sale of a controlled substance in the third degree.

In satisfaction of the charges contained in two indictments and also any uncharged crimes, defendant pleaded guilty to criminal possession of a weapon in the third degree and criminal sale of a controlled substance in the third degree. Under the terms of the plea agreement, he was to be sentenced as a second felony offender to concurrent prison terms of 2 to 4 years for criminal possession of a weapon in the third degree and 10 years for criminal sale of a controlled substance in the third degree, to be followed by two years of postrelease supervision. Defendant was sentenced in accordance with the plea agreement and he now appeals.

*1280Appellate 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 reviewing the record, counsel’s brief and defendant’s pro se supplemental brief, we disagree. There is at least one issue of arguable merit pertaining to the severity of the sentence. Therefore, without passing judgment on the ultimate merit of this issue, we grant counsel’s application and new counsel shall be assigned to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Smith, 32 AD3d 553 [2006]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Cardona, EJ., Peters, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.