People v. Coleman , 718 N.Y.S.2d 224 ( 2000 )

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered November 4, 1998, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, petit larceny and criminal mischief in the fourth degree.

In June 1998, a Columbia County Grand Jury handed up a four-count indictment charging defendant with burglary in the second degree, petit larceny, criminal mischief in the fourth degree and criminal possession of stolen property in the fifth degree. Following plea negotiations, defendant pleaded guilty to the first three counts in the indictment with County Court noting that the fourth count of the indictment, criminal possession of stolen property in the fifth degree, would be “merge [d].” Nevertheless, at sentencing, County Court sentenced defendant to a determinate term of 7V2 years in prison on the burglary in the second degree count, as well as a “concurrent period of incarceration under Counts 2, 3 and 4; Petit [L]arceny, Criminal Mischief in the Fourth Degree and Criminal Possession of Stolen Property in the Fifth Degree, all class A misdemeanors, of one year concurrent with that to be served under Count 1.”

On appeal, defense counsel asserts that no nonfrivolous appealable issues exist and seeks to be relieved of his assignment as counsel for defendant. Based upon our independent review of the record and defense counsel’s brief, we disagree. An examination of the record reveals an unexplained inconsistency between defendant’s plea and the sentence imposed. Under these circumstances, defense counsel is relieved and new counsel will be assigned to address any and all appealable issues contained in the record.

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