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

The PEOPLE of the State of New York, Respondent, v. Robert WILLIAMS, Appellant.

Decided: January 26, 2006

Before:  MERCURE, J.P., PETERS, SPAIN, LAHTINEN and KANE, JJ. Justin D. Herzog, Champlain, for appellant, and appellant pro se. Ronald J. Briggs, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Sheridan, J.), rendered June 10, 2002 in Essex County, upon a verdict convicting defendant of the crimes of assault in the second degree (three counts) and obstructing governmental administration.

Defendant was charged in an indictment with three counts of assault in the second degree and one count of obstructing governmental administration as the result of a physical altercation he had with three correction officers on September 13, 2001 while confined in a state correctional facility.   Following a jury trial, he was found guilty of all charges.   Defendant was thereafter sentenced as a second felony offender to five years in prison for each count of assault and one year in prison for obstructing governmental administration, to run concurrently to one another and consecutively to his underlying prison term.   He appeals.

Defense counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal.   Defendant has filed a pro se submission challenging, among other things, the sufficiency of the evidence supporting the guilty verdict and the effectiveness of trial counsel.   Based upon our review of the record and defendant's submission, we conclude that there are issues of “arguable merit” (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];  see People v. Stokes, 95 N.Y.2d 633, 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ), including whether the guilty verdict is supported by legally sufficient evidence (see e.g. People v. Stokes, 290 A.D.2d 71, 736 N.Y.S.2d 781 [2002], lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002], cert. denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97 [2002] ).   Accordingly, without passing judgment on the merits of any potential issues, defense counsel's request to be relieved of assignment is granted and new appellate counsel shall be appointed to address any nonfrivolous issues which the record may disclose.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

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