Supreme Court, Appellate Division Third Judicial Department
September 22, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DARNILE R. HARDEN, APPELLANT.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered August 3, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
State of New York
MEMORANDUM AND ORDER
Calendar Date: July 27, 2011
Before: Mercure, J.P., Rose, Malone Jr., Stein and McCarthy, JJ.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree. Under the terms of the plea agreement, he was to be sentenced to four years in prison, followed by two years of postrelease supervision. County Court sentenced defendant, as a second felony offender, in accordance with the plea agreement and imposed $100 restitution. 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 counsel's brief, we find at least one issue of arguable merit, namely the imposition of restitution when it was not included as part of the plea agreement (see People v Galietta, 75 AD3d 753, 754 ). Therefore, without passing judgment on the ultimate merit of this issue, we grant counsel's application, and new counsel shall be assigned to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 ; People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ).
Mercure, J.P., Rose, Malone Jr., Stein and McCarthy, 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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