PEOPLE v. BAILDON

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

The PEOPLE of the State of New York, Respondent, v. Steven P. BAILDON Sr., Appellant.

Decided: June 29, 2006

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, ROSE and KANE, JJ. Richard V. Manning, Parishville, for appellant. Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), for respondent.

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered August 1, 2005, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

On September 30, 2004, an indictment was handed up charging defendant with the crimes of burglary in the second degree and criminal possession of stolen property in the fourth degree following a police investigation into the July 22, 2003 burglary of a private home.   After the police located defendant in an Indiana jail, he was extradited to New York and was arrested on December 5, 2004.   In January 2005, defendant's assigned counsel moved to dismiss the indictment on the ground, among others, that defendant was denied his statutory right to a speedy trial (see CPL 30.30). County Court denied the motion.   Thereafter, defendant pleaded guilty to attempted burglary in the second degree and, in exchange, was to be sentenced as a second felony offender to three years in prison and five years of postrelease supervision.   As part of the plea agreement, defendant executed a general waiver of the right to appeal.   Defendant was sentenced in accordance with the terms of the plea agreement and he now appeals.

Defense counsel has made an application to be relieved of his assignment of representing defendant on appeal.   He concedes, however, that there are issues of potential merit, including a violation of defendant's speedy trial rights, which are not encompassed by defendant's waiver of his right to appeal.   In view of this, and given that our review of the record reveals the existence of issues that cannot be characterized as wholly frivolous (see People v. Stokes, 95 N.Y.2d 633, 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001];  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] ), we grant defense counsel's application to withdraw and assign new counsel to represent defendant on appeal 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.

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