State of New York Supreme Court, Appellate Division Third Judicial Department
January 5, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
FRANK C. LEONE JR., APPELLANT.
Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered June 15, 2010, convicting defendant upon his plea of guilty of the crimes of grand larceny in the fourth degree and forgery in the second degree.
MEMORANDUM AND ORDER
Calendar Date: November 2, 2011
Before: Mercure, Acting P.J., Peters, Malone Jr., McCarthy and Egan Jr., JJ.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with grand larceny in the fourth degree and forgery in the second degree. He pleaded guilty to these charges and waived his right to appeal. In accordance with the terms of the plea agreement, defendant was sentenced to consecutive terms of 2 to 4 years in prison for each crime and was ordered to pay restitution in the amount of $2,965.13. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant upon 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 propriety of County Court's order of restitution that is not precluded by defendant's waiver of the right to appeal (see People v Tallman, 82 AD3d 1363, 1364 ; People v Galietta, 64 AD3d 995 ). 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., Peters, Malone Jr., McCarthy 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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