People v. Benitez

28 A.D.3d 804, 811 N.Y.S.2d 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2006
• Status: Published

Opinion

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered June 9, 2003, convicting defendant upon his plea of guilty of the crime of aggravated harassment of an employee by an inmate.

While incarcerated in a state correctional facility, defendant threw urine and feces on two correction officers. He was thereafter charged in an indictment with two counts of aggravated harassment of an employee by an inmate and pleaded guilty to one of the charges in satisfaction thereof. He also waived his right to appeal. Under the terms of the plea agreement, defendant was to be sentenced to 2 to 4 years in prison, to run concurrently with the sentence he was then serving. At sentencing, however, County Court indicated that the agreed-upon sentence would have to run consecutive to the sentence that defendant was then serving and it sentenced him accordingly. Defendant appeals.

Defense counsel seeks to be relieved of his assignment of representing defendant upon the ground that there are no nonfrivolous issues to be raised on appeal. Upon reviewing the record, the parties’ briefs and defendant’s pro se submission, we are of the view that there are issues of “arguable merit,” (People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]; see People v Stokes, 95 NY2d 633, 637 [2001]), including the voluntariness of defendant’s plea, which warrant appellate review. Accordingly, defense counsel’s application is granted and new counsel shall be assigned to address any nonfrivolous issues the record may disclose.

Cardona, P.J., Spain, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.