Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered April 14, 2008, which revoked defendant's probation and imposed a sentence of imprisonment.
Calendar Date: February 2, 2011
Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ.
In 2006, defendant pleaded guilty to attempted sexual abuse in the first degree as a youthful offender and was sentenced to a period of 10 years of probation. In 2008, he was charged with violating the terms of his probation. Defendant admitted to the violation, purportedly waiving his right to appeal. His probation was revoked and he was resentenced to 1 to 3 years in prison. Defendant now appeals.
Appellate counsel seeks to be relieved of her assignment on the ground that there are no non-frivolous issues to be raised on appeal. Our review of the record, however, reveals at least one potentially non-frivolous issue that was arguably exempt from defendant's waiver of the right to appeal, namely the excessiveness of his negotiated resentencing (see People v Smith, 32 AD3d 553, 554-556 ). Accordingly, counsel's request is granted and new appellate counsel will be assigned to address this issue and any other non-frivolous issues that the record may disclose.
Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
Robert D. Mayberger Clerk of the Court
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