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The People of the State of v. Stanley Whitted

State of New York Supreme Court, Appellate Division Third Judicial Department


May 16, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
STANLEY WHITTED, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 14, 2010, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

MEMORANDUM AND ORDER

Calendar Date: April 3, 2013

Before: Peters, P.J., Rose, Lahtinen and Garry, JJ.

In satisfaction of a two-count indictment, defendant pleaded guilty to attempted burglary in the second degree and waived his right to appeal. In accord with the plea agreement, he was sentenced as a second felony offender to 41/2 years in prison, to be followed by five years of postrelease supervision. 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 have identified one issue of arguable merit pertaining to the validity of defendant's waiver of the right to appeal that may have implications for other potential appellate issues (see People v Roche, 82 AD3d 1364, 1365 [2011]; People v Morton, 45 AD3d 1191, 1191 [2007]). Therefore, without passing judgment upon 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, 980 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Peters, P.J., Rose, Lahtinen and Garry, JJ., concur.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

ENTER:

Robert D. Mayberger

Clerk of the Court

20130516

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