| People v Galietta |
| 2009 NY Slip Op 05883 [64 AD3d 995] |
| July 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonGalietta, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), renderedJune 22, 2007, convicting defendant upon his plea of guilty of the crimes of attempted murder inthe second degree (two counts), assault in the first degree (two counts) and recklessendangerment in the first degree (10 counts).
In satisfaction of a 16-count indictment, defendant pleaded guilty to two counts of attemptedmurder in the second degree, two counts of assault in the first degree and 10 counts of recklessendangerment in the first degree. In connection with the plea, defendant waived his right toappeal and executed a written waiver thereof. In addition, County Court agreed to impose asentence not to exceed 12 years in prison. Thereafter, defendant was sentenced in accordancewith the plea agreement to concurrent prison terms of 10 years on the attempted murder counts,five years on the assault counts and 1 to 3 years on the reckless endangerment counts. Inaddition, the court imposed restitution in the amount of $200. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on theground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of therecord, counsel's brief and defendant's pro se submission, we disagree. We find that there is atleast one issue of arguable merit pertaining to the propriety of County Court's award ofrestitution that warrants further consideration and that such consideration is not precluded bydefendant's waiver of the right to appeal (see People v McDowell, 56 AD3d 955, 956 [2008]; see [*2]alsoPeople v Wilson, 50 AD3d 1395, 1395 [2008]). Accordingly, without passing judgmenton any issue, we grant counsel's application and direct that new counsel be assigned to addressthis issue and any others that the record may reveal (see People v Stokes, 95 NY2d 633[2001]; People v Smith, 32 AD3d553 [2006]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d650 [1986]).
Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ., concur. Ordered that the decision iswithheld, application to be relieved of assignment granted and new counsel to be assigned.