| People v Lafferty |
| 2007 NY Slip Op 10404 [46 AD3d 1477] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 13, 2008 |
| The People of the State of New York, Respondent, v Robert A.
Lafferty, Appellant. |
—[*1]The case is held, the decision is reserved, the motion
to relieve counsel of assignment is granted and new counsel is to be assigned. Memorandum:
Defendant was convicted upon a guilty plea of driving while intoxicated as a class D felony
(Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and aggravated unlicensed
operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a]).
He was sentenced to an indeterminate term of incarceration of two to six years and a $3,000 fine
for driving while intoxicated and to a $1,000 fine for aggravated unlicensed operation.
Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to
People v Crawford (71 AD2d 38 [1979]), and has submitted an affidavit in which he
concludes that there are no nonfrivolous issues meriting this Court's consideration. The record
reveals that during the plea proceedings, the trial court informed the defendant that the sentence
upon his conviction for driving while intoxicated would be capped at two to six years. However,
the court did not advise the defendant that his sentence for each conviction would include a fine
or that the defendant, who was on probation at the time of his arrest, would receive an additional
consecutive prison sentence for the violation of probation resulting from these convictions. These
facts raise the issue of whether the court improperly imposed a more severe sentence than that
bargained for without offering the defendant the opportunity to withdraw his plea (see People v Barber, 31 AD3d
1145 [2006]). Therefore, we relieve counsel of his assignment and assign new counsel to
brief this issue, as well as any other issues that counsel's review of the record may disclose.
(Appeal from Judgment of Cattaraugus County Court, Larry M. Himelein, J.—Driving
While Intoxicated). Present—Scudder, P.J., Gorski, Lunn, Fahey and Green, JJ.