PEOPLE v. MORRIS CALDWELL (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered November 8, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Defendant pleaded guilty to a superior court information charging him with attempted criminal possession of a weapon in the second degree and purportedly waived the right to appeal.  County Court thereafter sentenced defendant to five years in prison, to be followed by five years of postrelease supervision.  Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues that may be raised on appeal.  Based upon our review of the record, we find issues of arguable merit pertaining to the validity of the waiver of the right to appeal that may impact other issues that may be raised, such as the severity of the sentence imposed (see People v. Williams, 204 A.D.3d 1161, 1162, 164 N.Y.S.3d 534 [3d Dept. 2022]).  Accordingly, without passing judgment on the ultimate merit of these issues, we grant counsel's application for leave to withdraw and assign new counsel to address these issues 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, Aarons, Reynolds Fitzgerald and McShan, JJ., concur.