| People v Leone |
| 2012 NY Slip Op 00052 [91 AD3d 981] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FrankC. Leone, Jr., Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered June15, 2010, convicting defendant upon his plea of guilty of the crimes of grand larceny in the fourthdegree and forgery in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with grand larceny in the fourth degree and forgery in the second degree. Hepleaded guilty to these charges and waived his right to appeal. In accordance with the terms ofthe plea agreement, defendant was sentenced to consecutive terms of 2 to 4 years in prison foreach crime and was ordered to pay restitution in the amount of $2,965.13. Defendant nowappeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant upon theground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of therecord, we disagree. We find at least one issue of arguable merit pertaining to the propriety ofCounty Court's order of restitution that is not precluded by defendant's waiver of the right toappeal (see People v Tallman, 82AD3d 1363, 1364 [2011]; People vGalietta, 64 AD3d 995 [2009]). Therefore, without passing judgment on the ultimatemerit of this issue, we grant counsel's application and assign new counsel to address this issueand any others that the record may disclose (see People v Cruwys, 113 AD2d 979 [1985],lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633[2001]).[*2]
Mercure, A.P.J., Peters, Malone Jr., McCarthy and EganJr., JJ., concur. Ordered that the decision is withheld, application to be relieved of assignmentgranted and new counsel to be assigned.