PEOPLE v. TIETJE (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 24, 2017, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

In satisfaction of a four-count indictment, defendant pleaded guilty to driving while intoxicated as a felony and purportedly waived his right to appeal.  County Court thereafter sentenced him to a prison term of 2 to 6 years, with the sentence to run consecutively to any previously imposed sentences.  Defendant now appeals.

Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised upon appeal.  We disagree.  Our review of the record discloses an issue of arguable merit regarding the validity of defendant's appeal waiver that may implicate other potential appellate issues, such as the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Torres, 157 A.D.3d 1126, 1127, 66 N.Y.S.3d 925 [2018] ).  Accordingly, without passing judgment on the merits of this issue, we grant counsel's application for leave to withdraw and assign new counsel to address this issue 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, 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 [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.

Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ., concur.