| People v Gassner |
| 2013 NY Slip Op 05933 [109 AD3d 1024] |
| September 19, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonS. Gassner, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), forrespondent.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered May 10, 2012, convicting defendant upon his plea of guilty of the crime ofburglary in the third degree.
In June 2011, defendant pleaded guilty to burglary in third degree in satisfaction of athree-count indictment. While the plea agreement discussions originally contemplated asentence of five years of probation, after the Probation Department instead recommendeda conditional discharge, in August 2011, the People revised their recommendationaccordingly. Defendant, represented by counsel, agreed and signed a waiver of the rightto appeal, as well as an order and conditions of conditional discharge, which providedthat defendant was to "observe and obey" all laws. County Court then sentenced him to,among other things, a conditional discharge of three years.
Subsequently, in December 2011, the People filed a violation of conditionaldischarge due to defendant being charged with new crimes. Defendant admitted violatingthe terms of the conditional discharge. Defense counsel requested that defendant besentenced to a period of probation in accordance with a February 2012 presentenceinvestigation report. County Court noted that this report did not include further newcharges and ultimately revoked the conditional discharge and resentenced defendant to aprison term of 1 to 3 years with respect to the burglary in the third degree conviction.This appeal ensued.
Appellate counsel seeks to be relieved of his assignment of representing defendantupon [*2]the ground that there are no nonfrivolous issuesto be raised on appeal. Based upon our review of the record, we disagree. We discern atleast one issue of arguable merit pertaining to the severity of the sentence (see People v Wasley, 100AD3d 1106, 1107 [2012]). Accordingly, without passing judgment upon theultimate merit of this issue, we grant counsel's application and assign new counsel toaddress this issue and any others that the record may disclose (see People vStokes, 95 NY2d 633 [2001]; People v Cruwys, 113 AD2d 979 [1985],lv denied 67 NY2d 650 [1986]).
Peters, P.J., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the decision iswithheld, application to be relieved of assignment granted and new counsel to beassigned.