PEOPLE v. McCLEARY

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

The PEOPLE of the State of New York, Respondent, v. Christopher McCLEARY, Appellant.

Decided: April 20, 2000

Before:  CARDONA, P.J., CREW III, PETERS, ROSE and LAHTINEN, JJ. Richard V. Manning, Parishville, for appellant. Jerome J. Richards, District Attorney (Rosemary R. Philips of counsel), Canton, for respondent.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered April 12, 1999, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

Defendant, a prison inmate, pleaded guilty to attempted assault in the second degree and was sentenced as a second felony offender to a prison term of 1 1/212 to 3 years, with such sentence to be served consecutively to the sentence he currently is serving.   Defense counsel contends that there are no nonfrivolous issues that can be raised on appeal and seeks to be relieved of his assignment as counsel for defendant.   Based upon our review of the record, defense counsel's brief and defendant's pro se submission, we disagree.

 A review of the record reveals a potential nonfrivolous issue regarding whether the nine-month delay between defendant's arrest and indictment violated defendant's right to due process (see, People v. Singer, 44 N.Y.2d 241, 253, 405 N.Y.S.2d 17, 376 N.E.2d 179).   We note that defendant's waiver of his right to appeal does not preclude review of his constitutional challenge to the preindictment delay (see generally, People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Haas, 229 A.D.2d 733, 645 N.Y.S.2d 617, lv. denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247).   Accordingly, counsel for defendant is relieved of his assignment and new counsel will be assigned to address any issues that the record may disclose.

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

CARDONA, P.J., PETERS, ROSE and LAHTINEN, JJ., concur.

CREW III, J.

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