People v. McCleary

271 A.D.2d 811, 706 N.Y.S.2d 750, 2000 N.Y. App. Div. LEXIS 4415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 2000
• Status: Published

Opinion

Crew III, J.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered April 12, 1999, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

Defendant, a prison inmate, pleaded guilty to attempted assault in the second degree and was sentenced as a second felony offender to a prison term of IV2 to 3 years, with such sentence to be served consecutively to the sentence he currently is serving. Defense counsel contends that there are no nonfrivolous issues that can be raised on appeal and seeks to be relieved of his assignment as counsel for defendant. Based upon our review of the record, defense counsel’s brief and defendant’s pro se submission, we disagree.

A review of the record reveals a potential nonfrivolous issue regarding whether the nine-month delay between defendant’s arrest and indictment violated defendant’s right to due process (see, People v Singer, 44 NY2d 241, 253). We note that defendant’s waiver of his right to appeal does not preclude review of his constitutional challenge to the preindictment delay (see generally, People v Seaberg, 74 NY2d 1, 9; People v Haas, 229 AD2d 733, lv denied 88 NY2d 1021). Accordingly, counsel for defendant is relieved of his assignment and new counsel will be assigned to address any issues that the record may disclose.

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