PEOPLE v. LOWE (2007)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered January 20, 2006, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Defendant pleaded guilty to grand larceny in the fourth degree as charged in a superior court information.   In accordance with the plea agreement, he was sentenced as a second felony offender to 2 to 4 years to be served at the Willard Drug Treatment Facility.   Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal.   Based upon our review of the record, we disagree.   We find that there is at least one issue of arguable merit pertaining to the severity of the sentence.   Consequently, without passing judgment on the ultimate merit of this issue, we grant counsel's application and new counsel shall be assigned to address this issue and any others 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. Smith, 32 A.D.3d 553, 820 N.Y.S.2d 162 [2006];  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.