PEOPLE v. PIERRE (2005)

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 A.D.3d 904, 780 N.Y.S.2d 389 [2004], lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [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 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [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 A.D.2d 979, 493 N.Y.S.2d 653 [1985], lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ).

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