People v. Hankerson

136 A.D.3d 1223, 25 N.Y.S.3d 619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2016
• Docket: 107159
• Status: Published

Opinion

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

Defendant waived indictment and pleaded guilty to rape in the third degree as charged in a superior court information. Under the terms of the plea agreement, he was to be sentenced to six months in jail and 10 years of probation. By the time that he was sentenced, he had already served time in jail and County Court sentenced him only to the 10-year term of probation. Defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, however, we find at least one issue of arguable merit pertaining to the voluntariness of defendant’s guilty plea (see People v Swarts, 56 AD3d 947, 947 [2008]). Accordingly, without expressing an opinion on the ultimate merit of this issue, we grant counsel’s application to be relieved of assignment and shall assign new counsel to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633, 636 [2001]; People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]).

Peters, P.J., Garry, Rose and Clark, JJ., concur.

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