PEOPLE v. LEE (2006)

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered September 6, 2005, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

In satisfaction of a superior court information and other pending charges, defendant pleaded guilty to the reduced charge of attempted burglary in the third degree and waived his right to appeal with the exception of the sentence imposed.   As part of the plea agreement, the People recommended a prison sentence of 1 1/212 to 3 years.   County Court imposed upon defendant, as a second felony offender, the maximum prison sentence of 2 to 4 years.   On appeal, counsel for defendant seeks to be relieved of her assignment on the ground that there are no nonfrivolous issues that can be raised on appeal.   Upon our review of the record, assigned counsel's brief and defendant's pro se submission, we find at least one issue of arguable merit.   Where, as here, defendant did not waive the right to challenge the sentence, he is entitled to argue on appeal that the sentence imposed was harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 256-257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006], revg. People v. Billingslea, 16 A.D.3d 516, 792 N.Y.S.2d 110 [2005];  People v. Smith, 32 A.D.3d 553, 820 N.Y.S.2d 162 [2006] ).   Inasmuch as this issue cannot be deemed “wholly frivolous” (People v. Stokes, 95 N.Y.2d 633, 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ), and without expressing any opinion as to the ultimate merit of such issue, we grant counsel's application to be relieved of her assignment and new counsel will be assigned to address this issue and any other nonfrivolous issue the record may disclose (see id.;   People v. Smith, supra;  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.