People v. Derverger

• Decision Date: 27 January 2022
• Docket Number: 112070
• Citation: 201 A.D.3d 1260,157 N.Y.S.3d 796 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Devon DERVERGER, Appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1260

157 N.Y.S.3d 796 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Devon DERVERGER, Appellant.

112070

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 30, 2021

Decided and Entered: January 27, 2022

Thomas R. Villecco, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered May 15, 2019, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant pleaded guilty to the crime of assault in the second degree and purportedly waived the right to appeal. County Court sentenced defendant to six years in prison, to be followed by five years of postrelease supervision. Defendant 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. Upon our review of the record and defense counsel's brief, we disagree. We find that there is an issue of arguable merit with respect to the validity of defendant's appeal waiver that may potentially impact other issues that may be raised, such as the severity of the sentence (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Dye, 197 A.D.3d 1436, 1436, 151 N.Y.S.3d 914 [2021] ). Accordingly, without passing judgment on the ultimate merit of this 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. Beaty, 22 N.Y.3d 490, 492–493, 982 N.Y.S.2d 820, 5 N.E.3d 983 [2014] ; People v. Stokes, 95 N.Y.2d 633, 638–639, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ; see generally People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ).

Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.

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