People v. Dippolito

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 16, 2005, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.

Defendant pleaded guilty to criminal possession of a forged instrument in the second degree in satisfaction of a 23-count indictment. In accordance with the plea agreement, he was sentenced as a second felony offender to 372 to 7 years in prison. He now appeals.

Defense counsel seeks to be relieved of his assignment of representing defendant upon the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, defense counsel’s brief and defendant’s pro se submission, we find that there is at least one potential issue of arguable merit concerning the severity of the sentence. Consequently, without expressing an opinion as to the ultimate merit of this issue, we grant counsel’s application to be relieved of his assignment and shall assign new counsel to address this issue and any other nonfrivolous issues the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Smith, 32 AD3d 553 [2006]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

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