People v Scott R. Martin

People v Martin 2003 NY Slip Op 19344 [2 AD3d 975] December 11, 2003 Appellate Division, Third Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Scott R. Martin, Appellant.

—Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered December 10, 2001, convicting defendant upon his plea of guilty of the crime of attempted sodomy in the first degree.

In satisfaction of a seven-count indictment, defendant pleaded guilty to the crime of attempted sodomy in the first degree and was sentenced as a second felony offender to a prison term of 12 years and five years of postrelease supervision. Defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. We disagree. Our review of the record, defense counsel's brief and defendant's pro se submission reveals the existence of potential nonfrivolous issues of "arguable merit" (People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]), including whether defendant was properly sentenced as a second felony offender given the terms of the plea agreement. Accordingly, defense counsel's application to be relieved is granted and new counsel will be assigned to address any issues which the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Cruwys, supra).

Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.