People v. Smith , 934 N.Y.2d 876 ( 2011 )

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, we disagree. We find one issue of arguable merit pertaining to the severity of the sentence that warrants further review. Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel’s application and assign new counsel to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Garren, 74 AD3d 1578 [2010]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Mercure, A.EJ., Spain, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.