PEOPLE v. VENABLE (2005)

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered December 16, 2002, which revoked defendant's probation and imposed a sentence of imprisonment.

In 1999, defendant pleaded guilty to burglary in the third degree, waived his right to appeal and was sentenced to six months' imprisonment and five years' probation.   In 2002, defendant was charged with and later admitted to violating the terms of his probation, whereupon his probation was revoked and he was resentenced to 1 to 4 years in prison.   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.   Upon our review of the record and defense counsel's brief, we disagree.

As we held subsequent to defense counsel's submission of an Anders brief in this case, defendant's original waiver of appeal does not preclude him from arguing on appeal that the sentence imposed for the underlying crime following the revocation of his probation is harsh and excessive (see People v. Rowland, 11 A.D.3d 825, 783 N.Y.S.2d 316 [2004];  see also People v. Cheatham, 278 A.D.2d 889, 718 N.Y.S.2d 913 [4th Dept. 2000], lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001];  People v. Rodriguez, 259 A.D.2d 1040, 689 N.Y.S.2d 895 [4th Dept. 1999];  see e.g. People v. Spriggs, 8 A.D.3d 833, 779 N.Y.S.2d 146 [2004], lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 20, 817 N.E.2d 838 [2004];  People v. Brown, 3 A.D.3d 593, 593, 770 N.Y.S.2d 465 [2004];  People v. Abar, 290 A.D.2d 592, 736 N.Y.S.2d 155 [2002], affd. 99 N.Y.2d 406, 757 N.Y.S.2d 219, 786 N.E.2d 1255 [2003];  People v. Espino, 279 A.D.2d 798, 800, 718 N.Y.S.2d 729 [2001] ), necessarily disagreeing with the contrary position adopted by the Second Department (see People v. Bennett, 269 A.D.2d 401, 704 N.Y.S.2d 95 [2d Dept. 2000], lv. denied 94 N.Y.2d 916, 708 N.Y.S.2d 355, 729 N.E.2d 1154 [2000];  People v. Strunkey, 268 A.D.2d 492, 701 N.Y.S.2d 643 [2d Dept. 2000], lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 173, 733 N.E.2d 245 [2000] ).   Since the record discloses at least one potential issue of arguable merit pertaining to the sentence as harsh or excessive (see People v. Allen, 13 A.D.3d 663, 785 N.Y.S.2d 355 [2004];  People v. Gilliam, 281 A.D.2d 657, 657-658, 720 N.Y.S.2d 854 [2001] ), we grant defense counsel's application to be relieved of his assignment and assign new counsel to represent defendant on appeal and raise any issues that the record may disclose (see People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];  People v. Cruwys, 113 A.D.2d 979, 980, 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.