People v Kerry

People v Kerry 2013 NY Slip Op 05932 Decided on September 19, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 19, 2013
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

DILLON J. KERRY, Appellant.

Calendar Date: July 29, 2013
Before: Rose, J.P., Lahtinen, Stein and McCarthy, JJ.


G. Scott Walling, Queensbury, for appellant.
Nicole M. Duve, District Attorney, Canton (Alexander
Lesyk of counsel), for respondent.


MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 29, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree, and (2) from a judgment of said court, rendered March 29, 2012, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant waived indictment and pleaded guilty to two superior court informations charging him with criminal possession of stolen property in the fourth degree and burglary in the third degree. Pursuant to the plea agreement, if defendant successfully completed the Judicial Diversion Program, he would be sentenced to five years of probation. If defendant failed to successfully complete the Judicial Diversion Program, County Court could impose a prison sentence of up to 11 years. Defendant repeatedly violated the terms of the Judicial Diversion Program, made counseled admissions of his violations and, ultimately, elected to withdraw from the program in exchange for a commitment by County Court to impose concurrent prison terms of 2 to 4 years on the charge of criminal possession of stolen property in the fourth degree and 3½ to 7 years on the charge of burglary in the third degree. County Court thereafter sentenced defendant as agreed and 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 [*2]records and counsel's brief, we agree. Accordingly, the judgments are affirmed and counsel's request for leave to withdraw is granted (see People v Ovitt, 105 AD3d 1213, 1213-1214 [2013]; People v Harden, 54 AD3d 1097, 1098 [2008]; People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]).

Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgments are affirmed, and application to be relieved of assignment granted.