People v Swarts

People v Swarts 2008 NY Slip Op 09113 [56 AD3d 947] November 20, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent, v Jeffrey L. Swarts, Appellant.

—[*1] Lance N. Salisbury, Ithaca, for appellant.

Gerald A. Keene, District Attorney, Owego (Irene C. Graven of counsel), for respondent.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered November 21, 2005, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Defendant pleaded guilty to sexual abuse in the first degree and was sentenced as negotiated to four years in prison and five years of postrelease supervision. Defendant appeals.

Appellate counsel for defendant seeks to be relieved of his assignment on the basis that there are no nonfrivolous issues to be advanced on appeal. Based upon our review of the record, we disagree. We find that there is at least one issue of arguable merit relating to the voluntariness of defendant's plea (see People v Benitez, 28 AD3d 804, 804 [2006]). Without expressing any opinion as to the ultimate merit of this issue, we grant counsel's application to be relieved of his assignment as counsel and new counsel will be assigned to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633, 636 [2001]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment [*2]granted, and new counsel to be assigned.