People v. Sutter , 733 N.Y.S.2d 641 ( 2001 )

—Appeal from a judgment of the County Court of Washington County (Hemmett, Jr., J.), rendered October 28, 1999, convicting defendant upon his plea of guilty of the crime of promoting prison contraband in the first degree.

Defendant was charged with the crime of promoting prison contraband in the first degree after he was found to be in possession of a plexiglass shank. He pleaded not guilty and, represented by assigned counsel, elected to have his case tried before a jury. Between the time of the close of proof and the jury charge, however, defendant expressed his dissatisfaction with defense counsel. County Court informed him that the trial would nonetheless continue until the jury had rendered its verdict. Defendant then entered into a plea bargain agreement pursuant to which he pleaded guilty to the crime of promoting prison contraband in the first degree, waiving his right to appeal from the judgment of conviction and the sentence in exchange for a prison sentence of 2 to 4 years, to be served consecutively with any unsatisfied sentence that he was then serving. Defendant now appeals. Defendant’s appellate counsel has moved to be relieved of his assignment on the ground that there are no nonfrivolous issues to be raised. Based upon our independent review of the record, and considering defendant’s pro se brief, we agree with defense counsel. The record demonstrates that defendant’s guilty plea was knowing and voluntary and that he received effective assistance of counsel, which resulted in him receiving the minimum sentence allowable on a conviction of promoting prison contraband in the first degree; given his status as a second felony offender serving an undischarged term of imprisonment (see, Penal Law § 205.25 [2]; § 60.05 [6]; § 70.06 [4] [b]; § 70.25 [2-a]). There being no nonfrivolous issues, the judgment is affirmed and defense counsel’s application for leave to withdraw is granted (see, People v Stokes, 95 NY2d 633; People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).

Mercure, J. P., Crew III, Spain, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.