Opinion
No. KA 08-01799.
March 25, 2011.
Appeal from Judgment of Steuben County Court, Joseph William Latham, J. — Attempted Burglary, 2nd Degree.
Present: Scudder, P.J., Centra, Sconiers, Gorski and Martoche, 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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford ( 71 AD2d 38). However, because the record reflects that defendant committed the instant violent felony offense while awaiting sentence on the prior offense, we find that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed ( see Penal Law § 70.25 [2-b]). 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.