PEOPLE v. JOHNSON (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered August 26, 2020 in Schenectady County, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

In satisfaction of a three-count indictment charging defendant with predatory sexual assault against a child and other crimes, defendant pleaded guilty under count 3, as reduced, to rape in the first degree.  The plea agreement required a waiver of appeal and contemplated a prison term in the range of 16 to 19 years.  After defendant's motion to withdraw his guilty plea was denied, Supreme Court imposed a prison term of 19 years to be followed by 20 years of postrelease supervision.  Defendant appeals.

Appellate counsel seeks to be relieved of this assignment of representing defendant on the ground that there are no nonfrivolous issues that may be raised on appeal.  Upon our review of the record and counsel's brief, we disagree and find that there is an issue of arguable merit with respect to the breath and validity of defendant's appeal waiver that may potentially impact other issues that may be raised, such as the severity of the sentence, and, thus, the appeal is not wholly frivolous (see People v. Shanks, 37 N.Y.3d 244, 251–253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [2021];  People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020];  People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Ward, 204 A.D.3d 1172, 1173–1174, 164 N.Y.S.3d 535 [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 855, 193 N.E.3d 520 [2022];  People v. Anthony, 201 A.D.3d 1028, 1029, 160 N.Y.S.3d 448 [3d Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 454, 191 N.E.3d 406 [2022]).  Accordingly, without passing judgment on the ultimate merit of this or any other issue, we grant counsel's application for leave to withdraw and assign new counsel to address this issue and any others that the record may disclose (see People v. Beaty, 22 N.Y.3d 490, 492–493, 982 N.Y.S.2d 820, 5 N.E.3d 983 [2014];  People v. Stokes, 95 N.Y.2d 633, 638–639, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];  see generally 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.

Garry, P.J., Egan Jr., Aarons, Fisher and McShan, JJ., concur.