People v. Champion

11 A.D.3d 822, 783 N.Y.S.2d 427, 2004 N.Y. App. Div. LEXIS 12615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2004
• Status: Published

Opinion

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered November 4, 2002, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and driving while intoxicated.

In satisfaction of a multicount indictment, defendant pleaded guilty to the crimes of assault in the second degree and driving while intoxicated. Defendant was sentenced to a prison term of six years, followed by three years of postrelease supervision in connection with the assault conviction, and a concurrent term of IV3 to 4 years for the conviction of driving while intoxicated. On appeal, defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. Upon our review of the record, we find that there is an issue of arguable merit regarding the sentence imposed in connection with the conviction of driving while intoxicated. When discussing the plea offer pertaining to that alcohol-related offense, the record reveals three different sentencing agreements, none of which coincides with the sentence ultimately imposed. Inasmuch as this issue cannot be characterized as “wholly frivolous,” defense counsel’s application for leave to withdraw is granted and new counsel will be assigned to address any issues which the record may disclose (People v Stokes, 95 NY2d 633 [2001]; see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

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