PEOPLE v. MILLER (1997)

Appeal from a judgment of the County Court of Columbia County (Lalor, J.), rendered June 26, 1995, convicting defendant upon her plea of guilty of the crimes of forgery in the second degree, criminal possession of a forged instrument in the second degree (five counts) and petit larceny (five counts).

Defendant pleaded guilty to the crimes of forgery in the second degree, criminal possession of a forged instrument in the second degree (five counts) and petit larceny (five counts) in full satisfaction of the indictment against her, certain uncharged acts and any probation violation which could be brought against her in Columbia County.   She was sentenced pursuant to a negotiated plea agreement as a second felony offender to a prison term of 2 to 4 years.   Defense counsel now 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.   We do not agree.   Our review of the record discloses that there is a nonfrivolous issue regarding whether defendant was properly sentenced as a second felony offender.   Although the District Attorney and defense counsel maintain that County Court and the parties were aware throughout the proceedings that defendant had a prior felony conviction, the record reflects that a statement of a prior felony conviction was neither filed with County Court nor provided to defendant (see, CPL 400.21), and that defendant was not afforded an opportunity to acknowledge or controvert the legitimacy of any previous conviction (see, People v. Bigio, 124 A.D.2d 907, 508 N.Y.S.2d 662;  People v. King, 114 A.D.2d 650, 652, 494 N.Y.S.2d 484, lv. denied 67 N.Y.2d 653, 499 N.Y.S.2d 1049, 490 N.E.2d 566).   Insofar as it appears that an appealable issue may exist, we therefore relieve defense counsel of his assignment and shall assign new counsel to assist in the appeal of any issues which the record may disclose (see, People v. Casiano, 67 N.Y.2d 906, 501 N.Y.S.2d 808, 492 N.E.2d 1224;  People v. Moore, 239 A.D.2d 708, 657 N.Y.S.2d 826).

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

MEMORANDUM DECISION.