PEOPLE v. ACOSTA (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Keith M. Bruno, J.), rendered November 22, 2021, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree.

In satisfaction of a 10–count indictment, defendant pleaded guilty to three counts of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the third degree and one count of criminal possession of a weapon in the third degree.  The plea agreement required defendant to waive the right to appeal.  County Court sentenced defendant, as a second felony offender, to nine years in prison, followed by three 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 defense counsel's brief, we disagree and find that there is an issue of arguable merit with respect to the breadth 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, 1172–1173, 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]).  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 [3d Dept. 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.

Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.