PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.

KA 09-00299
Indictment No: 08-041-08

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V EULESE N. CRUZ, ALSO KNOWN AS MARCO AGUAY, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Jefferson County Court rendered January 6, 2009, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Stephen Lance Cimino, Esq., dated January 29, 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, 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: Defendant was convicted upon his Alford plea of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]), and upon his guilty plea of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38). However, our review of the record reveals the existence of nonfrivolous issues for appeal, specifically, whether County Court erred in denying defendant's motion seeking to suppress the photo array identification of defendant, and whether there was sufficient evidence of guilt in the record to support defendant's Alford plea (see People v Richardson, 72 AD3d 1578). Therefore, we relieve counsel of his assignment and assign new counsel to brief these issues, as well as any other issues that counsel's review of the record may disclose.

Entered: July 2, 2010

Patricia L. Morgan, Clerk