                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       106151
________________________________

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

AKIM BATES, Also Known as GEE,
                    Appellant.
________________________________


Calendar Date:   March 29, 2016

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

                             __________


     M. Joe Landry, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady, for
respondent.

                             __________


      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
                              -2-                  106151

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 [2011];
People v Cruwys, 113 AD3d 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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
