State of New York Supreme Court, Appellate Division Third Judicial Department
December 29, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
SETH A. BOUTON, APPELLANT.
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), entered July 15, 2010, convicting defendant upon his plea of guilty of the crime of criminal mischief in the third degree.
MEMORANDUM AND ORDER
Calendar Date: November 2, 2011
Before: Mercure, Acting P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ.
In satisfaction of a four-count indictment and other pending charges, defendant pleaded guilty to criminal mischief in the third degree. Under the terms of the plea agreement, defendant agreed to waive his right to appeal, pay restitution and be sentenced to four months in jail, to be followed by five years of probation. At the time of sentencing, defendant executed a written waiver of the right to appeal and was sentenced to time served as well as five years of probation, the terms of which included the payment of restitution in the amount of $3,637.37. Defendant 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, we disagree. We find at least one issue of arguable merit pertaining to the validity of the waiver of appeal that has implications for other potential issues that may be raised (see People v Roche, 82 AD3d 1364, 1365 ; People v Morton, 45 AD3d 1191, 1191 ). Therefore, without passing judgment on the ultimate merit of this issue, we grant counsel's application and assign new counsel to address this issue and any others that the record may disclose (see People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ; see generally People v Stokes, 95 NY2d 633 ).
Mercure, Acting P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., 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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