                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     105512
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JUAN STEPHAN McCRAY,
                    Appellant.
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Stein, Garry, Rose and Lynch, JJ.

                             __________


     G. Scott Walling, Queensbury, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                             __________


      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered August 13, 2010, convicting
defendant upon his plea of guilty of the crimes of burglary in
the first degree and assault in the first degree.

      In satisfaction of a 16-count indictment, defendant pleaded
guilty to burglary in the first degree and assault in the first
degree and waived his right to appeal. In accordance with the
plea agreement, County Court agreed to sentence defendant, as a
persistent violent felony offender, to concurrent prison terms of
22 years to life. Defendant now appeals.

      Appellate counsel for defendant seeks to be relieved of his
assignment on the ground that there are no nonfrivolous issues
that can be raised on appeal. Upon our review of the record and
counsel's brief, however, we perceive at least one issue of
                              -2-                  105512

arguable merit pertaining to the validity of defendant's appeal
waiver which, in turn, may affect other potential issues (see
People v Slavin, 114 AD3d 1082, 1082 [2014]; People v March, 107
AD3d 1160, 1161 [2013]). Thus, without offering any opinion as
to the ultimate merit of that argument, 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, 636 [2001]; People v Cruwys, 113 AD2d 979, 980 [1985], lv
denied 67 NY2d 650 [1986]).

     Peters, P.J., Stein, Garry, Rose and Lynch, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
