PEOPLE v. MOREHOUSE (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McKeighan, J.), rendered February 26, 2016 in Washington County, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree.

In satisfaction of two indictments charging him with various crimes, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree, and waived his right to appeal, both orally and in writing.  Under the terms of the plea agreement, he was to be sentenced as a second felony offender to concurrent prison terms of 6 1/212 years followed by two years of postrelease supervision on his controlled substance conviction and 1 1/212 to 3 years on his weapon conviction.  At sentencing, however, County Court realized that the agreed-upon sentence of 1 1/212 to 3 years in prison for the weapon conviction was illegal and that the minimum permissible sentence for this crime was 2 to 4 years in prison.  Defense counsel indicated that this slightly greater sentence was acceptable to defendant, and defendant's written waiver of the right to appeal was amended accordingly.  County Court then imposed upon defendant concurrent prison sentences of 6 1/212 years followed by two years of postrelease supervision on the controlled substance conviction and 2 to 4 years on the weapon conviction.  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.  Upon reviewing the record, counsel's brief and defendant's pro se submission, we disagree.  We find that there is at least one issue of arguable merit with respect to the validity of defendant's appeal waiver that may potentially impact other issues that may be raised, such as the severity of the sentence (see People v. Tietje, 166 A.D.3d 1079, 1079, 85 N.Y.S.3d 287 [2018] ).  Notably, appellate counsel fails to even mention the sentencing change in his brief.  Therefore, without passing judgment on the ultimate merits of this issue or any others, we grant counsel's request 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.

Lynch, J.P., Clark, Devine, Aarons and Rumsey, JJ., concur.