People v Morton

People v Morton 2007 NY Slip Op 09452 [45 AD3d 1191] November 29, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Jamaal Morton, Appellant.

—[*1] Michael Braccini, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent. Carpinello, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered September 9, 2005, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Following a four-day trial at which 10 witnesses testified, defendant was convicted of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. At sentencing, defendant executed a waiver of his right to appeal and was sentenced as a second felony offender to concurrent terms of imprisonment of 4½ to 9 years. Defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues to be raised on appeal (see Anders v California, 386 US 738 [1967]).

Upon our review of the record, we perceive at least one issue of arguable merit regarding the validity of defendant's waiver of appeal (see People v Lewis, 29 AD3d 1076, 1076-1077 [2006]; People v Santalucia, 9 AD3d 740, 740-741 [2004]; see also People v Smith, 32 AD3d 553, 555-556 [2006]), and a determination of the enforceability of defendant's waiver may bring up for review any meritorious issues regarding, among other things, the pretrial procedures [*2]and hearings and the four-day trial which resulted in defendant's conviction (see People v Santalucia, 9 AD3d at 740; see also Matter of Taylor v Fry, 42 AD3d 680, 681 [2007]). Accordingly, the application of defendant's current counsel to be relieved of his assignment is granted and new counsel will be assigned to address any issues that the record may disclose (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

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