| People v Tallman |
| 2011 NY Slip Op 01750 [82 AD3d 1363] |
| March 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Denise M.Tallman, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), renderedJanuary 19, 2010, which resentenced defendant following her conviction of the crime of leavingthe scene of an incident without reporting.
In 2009, while on probation, defendant was charged in a two-count indictment with thecrimes of leaving the scene of an incident without reporting and falsely reporting an incident inthe third degree. In satisfaction of the indictment and the dismissal of a pending declaration ofdelinquency, defendant pleaded guilty to leaving the scene of an incident without reporting,waived her right to appeal and agreed to pay restitution in an undetermined amount. She waslater sentenced, in accordance with the plea agreement, as a second felony offender to 1½to 3 years in prison and was also ordered to pay restitution. After being given—and havingrejected—an opportunity to withdraw her plea, she was resentenced to 1 to 3 years inprison.[FN*]Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on [*2]the ground that there are no nonfrivolous issues to be raised onappeal. Based upon our review of the record, counsel's brief and defendant's pro se submission,we disagree. We find that there is at least one issue of arguable merit pertaining to the proprietyof the amount of restitution awarded by County Court that warrants further consideration, andthat such consideration is not precluded by defendant's waiver of the right to appeal (see People v Galietta, 64 AD3d995 [2009]). Accordingly, without passing judgment on any issue, we grant counsel'sapplication and direct that new counsel be assigned to address this issue and any others that therecord may reveal (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the decision is withheld,application to be relieved of assignment granted and new counsel to be assigned.
Footnote *: The resentence was necessarybecause it was subsequently discovered that the crime to which defendant pleaded guilty did notqualify her as a second felony offender and that the agreed-upon sentence was illegal.