                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 24, 2014                      105535
________________________________

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

KRISTIAN WHEELER,
                    Appellant.
________________________________


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., Stein, Garry, Lynch and Clark, JJ.

                              __________


     Claire Sullivan, Monticello, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                              __________


      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered October 10, 2012, 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 six-count indictment, defendant
pleaded guilty to criminal sale of a controlled substance in the
third degree. In accordance with the plea agreement, he was
sentenced as a prior felony offender to eight years in prison, to
be followed by three years of postrelease supervision. Defendant
appeals.

      Appellate counsel seeks to be relieved of her assignment of
representing defendant on the ground that there are no
nonfrivolous issues to be raised on appeal. Our review of the
record reveals that defendant had a prior nonviolent felony
                              -2-                  105535

conviction and County Court incorrectly informed him that he
faced potential sentences of up to 15 years (compare Penal Law
§ 70.70 [3] [b] [i] [up to 12 years where prior felony was
nonviolent], with Penal Law § 70.70 [4] [b] [i] [up to 15 years
where prior felony was violent]). Since such inaccurate
information is a factor when reviewing the plea (see People v
Garcia, 92 NY2d 869, 870 [1998]), there is at least one
nonfrivolous issue. Therefore, 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 Stokes,
95 NY2d 633 [2001]; People v Cruwys, 113 AD2d 979 [1985], lv
denied 67 NY2d 650 [1986]).

     Lahtinen, J.P., Stein, Garry, Lynch and Clark, 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
