Opinion
2011-12-29
The PEOPLE of the State of New York, Respondent, v. Frank C. LEONE, Appellant.
Constantine F. DeStefano, Albany, for appellant. Beth G. Cozzolino, District Attorney, Hudson (H. Neal Connolly of counsel), for respondent.
Constantine F. DeStefano, Albany, for appellant. Beth G. Cozzolino, District Attorney, Hudson (H. Neal Connolly of counsel), for respondent.
Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered July 14, 2010, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with grand larceny in the fourth degree. He pleaded guilty to that charge and signed a written document setting forth the conditions of the plea agreement, which included a waiver of the right to appeal and a joint sentencing recommendation of 2 to 4 years in prison. Defendant thereafter was sentenced as a second felony offender to 1 1/2 to 3 years in prison to run consecutively to the sentence imposed upon the prior conviction. He now appeals.
As clarified at sentencing, the joint recommendation was that said sentence would run concurrently with the sentence previously imposed upon a related conviction in Greene County.
Appellate counsel seeks to be relieved of his assignment of representing defendant upon the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, we disagree. We discern at least one issue of arguable merit related to the validity of the waiver of the right to appeal that may affect other potential appellate issues ( see People v. Roche, 82 A.D.3d 1364, 1365, 918 N.Y.S.2d 390 [2011]; People v. Morton, 45 A.D.3d 1191, 1191, 846 N.Y.S.2d 466 [2007] ). Accordingly, without passing judgment upon the ultimate merit of this issue, we grant counsel's application and assign new counsel to address this issue and any others that the record may disclose ( see People v. Cruwys, 113 A.D.2d 979, 493 N.Y.S.2d 653 [1985], lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986]; see generally People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.