People v. Leone

91 A.D.3d 981, 935 N.Y.2d 908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 2012
• Status: Published

Opinion

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 find at least one issue of arguable merit pertaining to the propriety of County Court’s order of restitution that is not precluded by defendant’s waiver of the right to appeal (see People v Tallman, 82 AD3d 1363, 1364 [2011]; People v Galietta, 64 AD3d 995 [2009]). Therefore, without passing judgment on 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 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Mercure, A.EJ, Peters, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.