Summary
This uncorrected opinion from the New York Appellate Division, Third Department, addresses a criminal defendant's direct appeal following a guilty plea. Appellate counsel moved to withdraw under Anders procedures, arguing the appeal was wholly frivolous due to a valid waiver of appeal rights. The court disagreed, identifying an arguable issue regarding the waiver's validity, and accordingly granted counsel leave to withdraw while assigning new counsel to proceed.
Topics
Practice areas
Questions Presented
- Whether the defendant's waiver of the right to appeal is valid and therefore raises an arguable issue on appeal
- Whether counsel may be relieved of assignment when non‑frivolous issues exist
Holdings
- The court found an issue of arguable merit as to the validity of the defendant's waiver of the right to appeal, concluding that the appeal is not wholly frivolous.
- The application for counsel’s withdrawal was granted and new counsel was ordered to be assigned.
Factual background
Anthony Nesbitt pleaded guilty to criminal contempt in the first degree, attempted assault in the second degree, and menacing in the second degree, and signed a written waiver of his right to appeal. The County Court sentenced him, as a second felony offender, to an aggregate term of four to eight years. Appellate counsel later moved to be relieved of representation, asserting that there were no non‑frivolous issues on appeal.
Procedural history
Defendant pleaded guilty to criminal contempt, attempted assault, and menacing, waived his right to appeal, and was sentenced to a 4‑8 year term. Counsel sought to withdraw, claiming no non‑frivolous issues; the appellate division denied that claim and granted counsel's withdrawal.