| People v Wilson |
| 2008 NY Slip Op 03524 [50 AD3d 1395] |
| April 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jermaine L.Wilson, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda, for respondent.
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), renderedJanuary 8, 2007, convicting defendant upon his plea of guilty of the crime of burglary in thesecond degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the seconddegree and waived his right to appeal. In accordance with the plea agreement, County Courtthereafter sentenced defendant as a second felony offender to six years in prison and five years ofpostrelease supervision. Having conducted a restitution hearing, the court also ordered thatdefendant pay restitution in the amount of $10,860. Defendant now appeals.
Defendant's appellate counsel seeks to be relieved of his assignment on the ground that thereare no nonfrivolous issues to be raised on appeal. Based upon our review of the record, wedisagree. Noting that, under the circumstances of this case, defendant's waiver of appeal does notbar him from challenging the amount of restitution ordered (see People v Sartori, 8 AD3d 748, 749 [2004]), we find that there isat least one issue of arguable merit pertaining to the propriety of the restitution order.Consequently, without passing any judgment on the ultimate merit of this issue, we grantcounsel's application for leave to withdraw and assign new counsel to address this issue and anyothers that the record may reveal (see People v Stokes, 95 NY2d 633 [2001]; People v Smith, 32 AD3d 553[2006]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650[1986]).[*2]
Spain, J.P., Carpinello, Malone Jr., Kavanagh and Stein,JJ., concur. Ordered that the decision is withheld, application to be relieved of assignmentgranted and new counsel to be assigned.