Calendar Date: June 6, 2013
Allen C. Read, Whitehall, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered March 24, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant pleaded guilty in Saratoga County to burglary in the second degree in satisfaction of a two-count indictment and waived his right to appeal. Pursuant to the plea agreement, defendant was to be sentenced to a prison term of seven years followed by a term of postrelease supervision not to exceed five years, and this sentence was to run concurrently with a sentence imposed in Rensselaer County. At sentencing, County Court imposed prison and postrelease supervision terms as agreed and also imposed restitution in the amount of $1, 050, at the People's request. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment on the ground that there are no nonfrivolous issues to be raised on appeal. However, based upon our review of the record, we find that there is at least one issue of arguable merit pertaining to County Court's imposition of restitution (see People v Hubbard, 99 A.D.3d 942, 942 ; People v Galietta, 75 A.D.3d 753, 754 ; People v Gantt, 63 A.D.3d 1379, 1379-1380 ). Accordingly, without passing on the ultimate merit of this issue, we grant counsel's application and assign new counsel to address this and any other issue that the record may disclose (see People v McQuality, 100 A.D.3d 1186, 1186 ; People v Velazquez, 60 A.D.3d 1150, 1151 ).
Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and ...