People v. Hayden , 911 N.Y.S.2d 676 ( 2010 )

—Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered August 10, 2009, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

After waiving indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree as charged in a superior court information and waived his right to appeal. Under the terms of the plea agreement, he was to be sentenced to three years in prison, with the recommendation that he receive shock incarceration, and that at the end of his imprisonment he would receive two years of postrelease supervision. At sentencing, it was discovered that defendant was ineligible for shock incarceration due to his prior criminal record. County Court afforded defendant the opportunity to withdraw his plea, which he declined. County Court proceeded to sentence defendant as a second felony offender to three years in prison, to be followed by two 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 and counsel’s brief, we agree. Therefore, the judgment is affirmed and counsel’s request for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Cardona, P.J., Rose, Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.