People v Delayo

People v Delayo 2017 NY Slip Op 04497 Decided on June 8, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 8, 2017
106237

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

SHAWN DELAYO, Appellant.

Calendar Date: May 9, 2017
Before: Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ.

M. Joe Landry, Schenectady, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady, for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered June 24, 2013, which resentenced defendant following his conviction of the crime of criminal sale of a controlled substance in the third degree.

As is relevant here, defendant pleaded guilty to count 1 of the indictment charging him with criminal sale of a controlled substance in the third degree and was sentenced to a prison term of 8 to 24 years followed by a period of postrelease supervision. Thereafter, he successfully moved pursuant to CPL 440.46 for resentencing. Ultimately, defendant was resentenced to the maximum statutory prison term of nine years, 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, defense counsel's brief and defendant's pro se submission, there is at least one issue of arguable merit, whether the resentence was harsh and excessive. Therefore, without expressing any opinion as to the ultimate merit of that issue, we will grant defense counsel's application for leave to withdraw and assign new counsel to address this issue and any other issue that the record may disclose (see People v Stokes , 95 NY2d 633 [2001]; People v Cruwys , 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ., concur.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.