Opinion
March 1, 2001.
Appeal from a judgment of the County Court of Chemung County (Danaher Jr., J.), rendered March 15, 1995, upon a verdict convicting defendant of the crimes of manslaughter in the first degree and robbery in the first degree.
Eliza S. Mulhern, Cortland, for appellant.
John R. Trice, District Attorney, Elmira, for respondent.
Before: Cardona, P.J., Mercure, Crew III, Spain and Mugglin, JJ.
MEMORANDUM AND ORDER
In 1994, a three-count indictment against defendant charged him with murder in the first degree, murder in the second degree and robbery in the first degree. The charges arose from an incident which occurred on May 26, 1994 wherein the victim, who was acquainted with defendant, was stabbed to death in his home and money was taken. The trial evidence indicated that defendant, who had been drinking with the victim earlier in the evening, returned to the victim's home to borrow money. At trial, defendant testified that, after the victim made a racial slur, they fought and defendant grabbed a kitchen knife, allegedly in self-defense, and stabbed the victim. Defendant stated that he then panicked, picked up $50 from the floor and left to buy crack cocaine. In addition to asserting self-defense as justification for the killing, defendant contended that due to a previous unrelated beating by the victim, extreme emotional distress mitigated the killing. Ultimately, defendant was convicted of manslaughter in the first degree and robbery in the first degree, and sentenced to concurrent terms of imprisonment of 8 to 25 years, resulting in this appeal.
Defense counsel seeks to be relieved of her assignment as counsel on the ground that no nonfrivolous issues can be raised on appeal. Defendant submits a pro se letter alleging several trial errors and the claim that he received ineffective assistance of trial counsel. Significantly, our review of the record reveals the existence of various potential nonfrivolous issues of "arguable merit" (People v. Cruwys, 113 A.D.2d 979, 980, lv denied 67 N.Y.2d 650; see, People v. Stokes, 95 N.Y.2d 633 [Feb. 8, 2001]; People v. Espino, 279 A.D.2d 798, 718 N.Y.S.2d 729), including whether the People disproved self-defense beyond a reasonable doubt, whether County Court properly denied defendant's request to charge the lesser included offense of petit larceny and whether defendant's sentence was harsh and excessive. Accordingly, we will assign new counsel to represent defendant on appeal and grant defense counsel's application to be relieved of her assignment (see, People v. Garnett, 274 A.D.2d 667; People v. Cruwys, supra; see also, Anders v. California, 386 U.S. 738).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.