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

KAH 08-01509
Index No: 20,636-08

THE PEOPLE OF THE STATE OF NEW YORK EX REL. CALVIN POWELL, PETITIONER-APPELLANT, V NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT.

An appeal having been taken to this Court from a judgment of the Supreme Court, Wyoming County entered June 5, 2008, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Susan K. Jones, Esq., sworn to March 25, 2009, 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 pro se supplemental brief filed by appellant, 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: In denying relator's habeas corpus petition, Supreme Court held that "[u]pon his release to post-release supervision, the balance of the maximum term on his indeterminate sentence was properly held in abeyance pursuant to Penal Law § 70.45 (5) (a)." However, relator's indeterminate sentence arose from a crime committed in 1997, prior to the effective date of Penal Law § 70.45. Thus, a nonfrivolous issue exists as to whether this provision was properly applied. 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: July 2, 2009

Patricia L. Morgan, Clerk