PRESENT: SCUDDER, P.J., MARTOCHE, SCONIERS, GREEN, AND GORSKI, JJ.

KA 09-01364

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V FRANK WISNIEWSKI, DEFENDANT-APPELLANT. Indictment No: 5915

An appeal having been taken to this Court from a judgment of the Wyoming County Court rendered February 24, 2009, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Neal J. Mahoney, Esq., sworn to February 23, 2010, 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 criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31), and was sentenced as a second felony drug offender to a determinate term of imprisonment of two and one-half years and two 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 affidavit in which he concludes that there are no nonfrivolous issues meriting this Court's consideration. A review of the sentencing minutes reveals that the court did not ask defendant prior to sentencing whether he wished to controvert the allegations contained in the second felony offender statement as required by CPL § 400.21 (3). Therefore, a nonfrivolous issue exists as to the legality of the sentence. Accordingly, 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: June 11, 2010

Patricia L. Morgan, Clerk