People v. Galietta

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 22, 2007, convicting defendant upon his plea of guilty of the crimes of attempted murder in the second degree (two counts), assault in the first degree (two counts) and reckless endangerment in the first degree (10 counts).

In satisfaction of a 16-count indictment, defendant pleaded guilty to two counts of attempted murder in the second degree, two counts of assault in the first degree and 10 counts of reckless endangerment in the first degree. In connection with the plea, defendant waived his right to appeal and executed a written waiver thereof. In addition, County Court agreed to impose a sentence not to exceed 12 years in prison. Thereafter, defendant was sentenced in accordance with the plea agreement to concurrent prison terms of 10 years on the attempted murder counts, five years on the assault counts and 1 to 3 years on the reckless endangerment counts. In addition, the court imposed restitution in the amount of $200. Defendant now appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. 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 *996of arguable merit pertaining to the propriety of County Court’s award of restitution that warrants further consideration and that such consideration is not precluded by defendant’s waiver of the right to appeal (see People v McDowell, 56 AD3d 955, 956 [2008]; see also People v Wilson, 50.AD3d 1395, 1395 [2008]). Accordingly, without passing judgment on any issue, we grant counsel’s application and direct that new counsel be assigned to address this issue and any others that the record may reveal (see People v Stokes, 95 NY2d 633 [2001]; People v Smith, 32 AD3d 553 [2006]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Mercure, J.E, Rose, Kane, Kavanagh and Garry, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.