PEOPLE v. MORTON

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

The PEOPLE of the State of New York, Respondent, v. Jamaal MORTON, Appellant.

Decided: November 29, 2007

Before:  CREW III, J.P., PETERS, SPAIN, CARPINELLO and MUGGLIN, JJ. Michael Braccini, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered September 9, 2005, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Following a four-day trial at which 10 witnesses testified, defendant was convicted of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.   At sentencing, defendant executed a waiver of his right to appeal and was sentenced as a second felony offender to concurrent terms of imprisonment of 4 1/212 to 9 years.   Defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues to be raised on appeal (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 [1967] ).

Upon our review of the record, we perceive at least one issue of arguable merit regarding the validity of defendant's waiver of appeal (see People v. Lewis, 29 A.D.3d 1076, 1076-1077, 813 N.Y.S.2d 686 [2006];  People v. Santalucia, 9 A.D.3d 740, 740-741, 779 N.Y.S.2d 793 [2004];  see also People v. Smith, 32 A.D.3d 553, 555-556, 820 N.Y.S.2d 162 [2006] ), and a determination of the enforceability of defendant's waiver may bring up for review any meritorious issues regarding, among other things, the pretrial procedures and hearings and the four-day trial which resulted in defendant's conviction (see People v. Santalucia, 9 A.D.3d at 740, 779 N.Y.S.2d 793;  see also Matter of Taylor v. Fry, 42 A.D.3d 680, 681, 838 N.Y.S.2d 449 [2007] ).   Accordingly, the application of defendant's current counsel to be relieved of his assignment is granted and new counsel will be assigned to address any issues that the record may disclose (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.

CARPINELLO, J.

CREW III, J.P., PETERS, SPAIN and MUGGLIN, JJ., concur.

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