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People v. Kerry

Supreme Court of New York, Third Department

September 19, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DILLON J. KERRY, Appellant.

Calendar Date: July 29, 2013

G. Scott Walling, Queensbury, for appellant.

Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.

Before: Rose, J.P., Lahtinen, Stein and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 29, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree, and (2) from a judgment of said court, rendered March 29, 2012, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant waived indictment and pleaded guilty to two superior court informations charging him with criminal possession of stolen property in the fourth degree and burglary in the third degree. Pursuant to the plea agreement, if defendant successfully completed the Judicial Diversion Program, he would be sentenced to five years of probation. If defendant failed to successfully complete the Judicial Diversion Program, County Court could impose a prison sentence of up to 11 years. Defendant repeatedly violated the terms of the Judicial Diversion Program, made counseled admissions of his violations and, ultimately, elected to withdraw from the program in exchange for a commitment by County Court to impose concurrent prison terms of 2 to 4 years on the charge of criminal possession of stolen property in the fourth degree and 3½ to 7 years on the charge of burglary in the third degree. County Court thereafter sentenced defendant as agreed and defendant now appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Upon reviewing the records and counsel's brief, we agree. Accordingly, the judgments are affirmed and counsel's request for leave to withdraw is granted (see People v Ovitt, 105 A.D.3d 1213, 1213-1214 [2013]; People v Harden, 54 A.D.3d 1097, 1098 [2008]; People v Cruwys, 113 A.D.2d 979, 980 [1985], lv denied 67 N.Y.2d 650 [1986]).

Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgments are affirmed, and application to be relieved of assignment granted.


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