PRESENT: SCUDDER, P. J., HURLBUTT, MARTOCHE, SMITH, AND LUNN, JJ.

KA 07-02181
Indictment No: 06-378-06

PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V JOSEPH R. SPENCER, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the County Court entered in the Office of the Clerk of the County of Jefferson on April 16, 2007, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Stephen Bird, Esq., dated May 12, 2008, 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 affirmation of Walter M. Jeram, Jr., Esq., dated June 3, 2008, 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 burglary in the third degree (Penal Law § 140.20). 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.

Entered: October 3, 2008

JoAnn M. Wahl, Clerk