PRESENT: SCUDDER, P. J., GORSKI, CENTRA, FAHEY, AND GREEN, JJ.

KA 05-02216
Indictment No: 2004-1642

PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V XAVIER PRIMM, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Erie on July 8, 2005, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Robert L. Kemp, Esq., sworn to July 17, 2007, the notice of motion with proof of service thereof, the brief filed by counsel on behalf of appellant, together with the record on appeal, the statement of J. Michael Marion, Esq., dated July 20, 2007, and due deliberation having been had thereon,

It is hereby ORDERED that the case is held, 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 [2] ). He was sentenced to a determinate term of incarceration of three years together with five years postrelease supervision. 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 the trial court failed to advise the defendant of the postrelease supervision component of his sentence during the plea allocution. This fact raises the issue of whether defendant's plea was knowing, voluntary and intelligent (see People v Louree, 8 NY3d 541). 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.

Entered: November 9, 2007

JoAnn M. Wahl, Clerk