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People v. Bates

139 A.D.3d 1110 Court N.Y. App. Div. Decision date 2016-05-05 English

Judges Garry, J.P., Egan Jr., Lynch, Devine and Aarons, JJ., concur.

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p. 1110
The People of the State of New York, Respondent, v Akim Bates, Also Known as Gee, Appellant.
[29 NYS3d 201]

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 14, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree pursuant to a plea agreement that included a waiver of appeal. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon prison term of five years followed by three years of postrelease supervision. Defendant now 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

p. 1111
review of the record and counsel’s brief, we disagree. Our review of the record reveals an issue of arguable merit as to whether defendant validly waived his right to appeal that may, in turn, implicate other potential appellate issues (see People v Stevens, 133 AD3d 1095 , 1095 [2015]; People v Metayeo, 132 AD3d 1159 , 1160 [2015]; People v Martin, 125 AD3d 1016 , 1016 [2015]). Therefore, without expressing an opinion on the merits of any issue, we grant counsel’s application for leave to withdraw 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 Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Garry, J.P., Egan Jr., Lynch, Devine and Aarons, JJ., concur.

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

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