PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

KA 09-01312
SCI No: 09-DI-023

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V HERLAND W. BOUWENS, III, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Ontario County Court rendered May 8, 2009, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of John E. Tyo, Esq., dated September 8, 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 statement of R. Michael Tantillo, Esq., dated September 10, 2010, 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 third degree (2 counts) (Penal Law § 220.39 [1]), and was sentenced to concurrent determinate terms of imprisonment of three and one-half years and three 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. However, upon our review of the record we conclude that a nonfrivolous issue exists as to whether the court erred in failing either to offer the defendant the opportunity to withdraw his plea, or to conduct a hearing to determine whether defendant had met the requirements of the People's plea offer or had been prevented from doing so. 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: February 10, 2011

Patricia L. Morgan, Clerk