People v. Green , 30 N.Y.S.3d 373 ( 2016 )

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: April 21, 2016 106766 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER LEYDEN GREEN, Appellant. ________________________________ Calendar Date: February 23, 2016 Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ. __________ Michael P. Graven, Owego, for appellant, and appellant pro se. Weeden A. Wetmore, District Attorney, Elmira, for respondent. __________ Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered March 24, 2014, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree. In satisfaction of two indictments, defendant pleaded guilty to criminal sale of a controlled substance in the third degree pursuant to a plea agreement that contemplated a prison sentence of three years followed by two years of postrelease supervision. Consistent with the agreement, County Court imposed the agreed-upon sentence, and defendant now appeals. Appellate counsel seeks to be relieved of his assignment on the ground that no nonfrivolous issue can be raised. Upon our review of the record, counsel's brief and defendant's pro se -2- 106766 submission, we disagree. In view of defendant's pro se challenges to, among other matters, the voluntariness of his guilty plea and his claims of ineffective assistance of counsel, "we find that the record reveals the existence of issues that cannot be characterized as wholly frivolous" (People v Cole, 98 AD3d 1144, 1145 [2012]). Without expressing an opinion as to the ultimate merit of any issue, defense counsel's application to be relieved of his assignment is granted and new counsel will be assigned to address these issues and any others that the record may disclose (see People v Stokes, 95 NY2d 633, 636 [2001]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]). Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur. ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned. ENTER: Robert D. Mayberger Clerk of the Court