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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Terry L. CHAMPION, Appellant.

Decided: October 28, 2004

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Paul R. Corradini, Public Defender, Elmira, for appellant. John R. Trice, District Attorney, Elmira, for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered November 4, 2002, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and driving while intoxicated.

In satisfaction of a multicount indictment, defendant pleaded guilty to the crimes of assault in the second degree and driving while intoxicated.   Defendant was sentenced to a prison term of six years, followed by three years of postrelease supervision in connection with the assault conviction, and a concurrent term of 1 1/313 to 4 years for the conviction of driving while intoxicated.   On appeal, defense counsel 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.   Upon our review of the record, we find that there is an issue of arguable merit regarding the sentence imposed in connection with the conviction of driving while intoxicated.   When discussing the plea offer pertaining to that alcohol-related offense, the record reveals three different sentencing agreements, none of which coincides with the sentence ultimately imposed.   Inasmuch as this issue cannot be characterized as “wholly frivolous,” defense counsel's application for leave to withdraw is granted and new counsel will be assigned to address any issues which the record may disclose (People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];  see 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.

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