PRESENT: SCUDDER, P. J., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.

KA 07-02497
Indictment No: 2007-046A

PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V IAN HUNTER, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Livingston County Court rendered September 6, 2007, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Neil J. Mahoney, Esq., sworn to November 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, 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 second degree (Penal Law § 140.25 [2]), and was sentenced to a determinate term of imprisonment of six years and a three-year period of postrelease supervision. Defendant was also ordered to pay restitution in the amount of $5287.38. 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 reveals that restitution was not part of the plea agreement. This fact raises the issue of whether County Court erred in ordering defendant to pay restitution without affording him an opportunity to withdraw his plea (see People v Ponder, 42 AD3d 880, lv denied 9 NY3d 925). 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: March 20, 2009

JoAnn M. Wahl, Clerk