Opinion
December 31, 1998
Appeal from Judgment of Livingston County Court, Cicoria, J. — Attempted Assault, 2nd Degree.
Case held, decision reserved, motion to relieve counsel of assignment granted and new counsel to be assigned. Memorandum: Defendant was convicted upon his guilty plea of attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal [7]) and was sentenced to an indeterminate term of incarceration of 11/2 to 3 years. Assigned counsel has moved to be relieved of her assignment pursuant to People v. Crawford ( 71 A.D.2d 38) and has filed a brief in which she concludes that the appeal is frivolous because there are no issues of law or questions of fact meriting this Court's consideration. A review of the plea colloquy reveals a nonfrivolous issue, i.e., whether defendant raised a possible justification defense. That issue was not addressed by County Court. In addition, the court made no inquiry concerning the injury to the correction officer to establish the physical injury element of attempted assault in the second degree (Penal Law § 120.05). Thus, we relieve counsel of her assignment, and new counsel shall be assigned to brief those issues and any other issues counsel's review of the record may disclose.
Present — Denman, P. J., Green, Pine, Wisner and Balio, JJ.