PEOPLE v. SERNA (1999)

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered August 5, 1998, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

Defendant pleaded guilty to the crime of criminal possession of a controlled substance in the second degree in satisfaction of a four-count indictment and was sentenced to a prison term of 8 1/313 years to life.   On appeal, defense counsel has asserted that no nonfrivolous appealable issues exist and seeks to be relieved of his assignment as counsel for defendant.   Based upon our independent review of the record, defense counsel's brief and defendant's pro se brief, we disagree.

 Along with contending that his sentence to the harshest permissible prison term was excessive given that it was his first felony offense, defendant claims in his brief that his guilty plea was not entered into knowingly and intelligently because he could not communicate effectively with his attorney due to language difficulties and there was no interpreter provided for him at the plea allocution.   Although the plea minutes indicate that defendant did respond in English when questioned by County Court, the court did not question defendant as to his proficiency in English or understanding of the proceedings and there is no explanation on the record as to why defendant was provided with an interpreter only at sentencing.   Thus, despite defendant's failure to move to withdraw the plea or seek to vacate the judgment of conviction (see, People v. Espinal, 176 A.D.2d 417, 418, 574 N.Y.S.2d 406), we conclude that the record reveals arguable nonfrivolous issues as to the voluntariness of the plea and the appropriateness of the sentence.   Since we find it appropriate for “independent counsel [to] take a fresh look at [the] proceeding” (People v. Rhodes, 245 A.D.2d 844, 845, 666 N.Y.S.2d 355), defense counsel is relieved and new counsel will be assigned to address any and all appealable issues contained in the record.

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

MEMORANDUM DECISION.