Opinion
No. KA 05-02025.
June 8, 2007.
Present — Scudder, P.J., Martoche, Smith, Centra and Peradotto, JJ.
The case is held, the decision is reserved, the motion to relieve counsel of assignment is granted and new counsel is to be assigned. Memorandum: Defendant was convicted upon a guilty plea of criminal sexual act in the second degree (Penal Law § 130.45), unlawfully dealing with a child in the second degree (Penal Law § 260.21), and endangering the welfare of a child (Penal Law § 260.10). He was sentenced to an indeterminate term of incarceration of 1½ to 4½ years. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford ( 71 AD2d 38), and has submitted an affirmation in which he concludes that there are no nonfrivolous issues meriting this Court's consideration. The record establishes that defendant moved prior to sentencing to withdraw his plea. The facts raise the issue of whether the court abused its discretion in denying defendant's motion. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose. (Appeal from Judgment of Ontario County Court, Craig J. Doran, J. — Criminal Sexual Act, 2nd Degree).