People v Clifford Pierre

People v Pierre 2005 NY Slip Op 09767 [24 AD3d 1034] December 22, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent, v Clifford Pierre, Appellant.

—[*1]Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered July 28, 2004, which resentenced defendant following his conviction of the crime of criminal possession of a controlled substance in the third degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and was sentenced, as a second felony offender, to 5 to 10 years in prison. Following an appeal by defendant, the sentence was vacated due to the People's failure to file a second felony offender statement (see CPL 400.21), and the matter was remitted to County Court for resentencing (8 AD3d 904 [2004], lv denied 3 NY3d 710 [2004]). At resentencing, the People filed a predicate felony statement and defendant acknowledged receiving it. While he admitted, through counsel, the allegations therein, counsel advised the court "just for the record, my client has informed me that he intends to challenge the constitutionality of the conviction that he just acknowledged." Instead of making further inquiry or holding a hearing on this issue (see CPL 400.21 [7] [a], [b]), the court ruled that it was empowered to sentence him as a second felony offender and he could raise the issue of the constitutionality of his first conviction on appeal. On this record, we determine that there is at least one issue of arguable merit (see People v Stokes, 95 NY2d 633, 636 [2001]) and we, therefore, disagree with appellate counsel who seeks to be relieved of his assignment on the ground that there are no nonfrivolous issues to be raised. Therefore, new counsel should be assigned to address any issues that the record may disclose (see id.; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]). [*2]

Crew III, J.P., Peters, Mugglin, Rose and Kane, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.