People v. Kranenburg , 994 N.Y.S.2d 722 ( 2014 )

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 14, 2011, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree by misappropriation of trust funds (two counts).

In satisfaction of a 13-count indictment charging him with various crimes, defendant pleaded guilty to two counts of grand larceny in the third degree by misappropriation of trust funds. County Court thereafter sentenced defendant — in accordance with the terms of the plea agreement — to two consecutive terms of 2 to 4 years in prison and imposed restitution in the amount of approximately $250,000. Defendant now appeals, and appellate counsel seeks to be relieved of his assignment upon the ground that there are no nonfrivolous issues to be raised on appeal.

Appellate counsel mistakenly argues that defendant’s guilty plea forecloses any challenge to the severity of the sentence imposed; in fact, such a claim is precluded only where a defendant pleads guilty and validly waives his or her right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]) — the latter of which did not occur here. Therefore, we grant counsel’s application for leave to withdraw and assign new counsel (see People v Stokes, 95 NY2d 633, 635-636, 639 [2001]; see also Anders v California, 386 US 738, 744 [1967]; Ellis v United States, 356 US 674, 675 [1958]).

Peters, EJ., Stein, McCarthy, Egan Jr. and Lynch, JJ., concur.

Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.