People v. Tallman

Mar 10, 2011
Versions:82 A.D.3d 1363
918 N.Y.S.2d 391

In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. Under the terms of the plea agreement, defendant was not promised any particular sentence, but was advised that he could be sentenced to a prison term between 2 and 12 years in length, which would be followed by a period of postrelease supervision between 1 1/2 and 3 years. Thereafter, defendant was sentenced as a second felony offender to 3 1/2 years in prison, with three years of postrelease supervision. Defendant 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 and counsel‘s brief, we agree. Therefore, the judgment is affirmed and counsel‘s request for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.

The People of the State of New York, Respondent, v Denise M. Tallman, Appellant. [918 NYS2d 391]

In 2009, while on probation, defendant was charged in a two-count indictment with the crimes of leaving the scene of an incident without reporting and falsely reporting an incident in the third degree. In satisfaction of the indictment and the dismissal of a pending declaration of delinquency, defendant pleaded guilty to leaving the scene of an incident without reporting, waived her right to appeal and agreed to pay restitution in an undetermined amount. She was later sentenced, in accordance with the plea agreement, as a second felony offender to 1 1/2 to 3 years in prison and was also ordered to pay restitution. After being given—and having rejected—an opportunity to withdraw her plea, she was resentenced to 1 to 3 years in prison.1 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 of arguable merit pertaining to the propriety of the amount of restitution awarded by County Court that warrants further consideration, and that such consideration is not precluded by defendant‘s waiver of the right to appeal (see People v Galietta, 64 AD3d 995 [2009]). 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 Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

The People of the State of New York, Respondent, v James T. Roche, Appellant. [918 NYS2d 390]

In satisfaction of a six-count indictment, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived his right to appeal.2 Under the terms of the plea agreement, he was to be sentenced to two years in prison, to be followed by a period of postrelease supervision of between 1 1/2 and 3 years. He was thereafter sentenced to two years in prison and two years of postrelease supervision. 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. Upon reviewing the record, counsel‘s brief and defendant‘s pro se submission, we

Notes

1
* The resentence was necessary because it was subsequently discovered that the crime to which defendant pleaded guilty did not qualify her as a second felony offender and that the agreed-upon sentence was illegal.
2
* Notably, although the transcript of the plea proceeding contains a reference to a written appeal waiver, such document has not been provided to this Court.