State of New York Supreme Court, Appellate Division Third Judicial Department
June 18, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID A. USHER, APPELLANT.
MEMORANDUM AND ORDER
Calendar Date: May 13, 2009
Before: Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 2, 2008, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with grand larceny in the fourth degree. He pleaded guilty to the charge and waived his right to appeal. Under the terms of the plea agreement, he was to be sentenced to 1 to 3 years in prison, to run concurrently with a sentence he was serving on a probation violation. Defendant was sentenced in accordance with the plea agreement and he now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no non-frivolous issues to be raised on appeal. Based upon our review of the record and appellate counsel's brief, we agree. Therefore, the judgment is affirmed and counsel's application for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ; see generally People v Stokes, 95 NY2d 633 ).
Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, and application to be relieved of assignment granted.
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