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

KA 08-01799
SCI No: 2008-156W

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V ALINA PHELPS, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Steuben County Court rendered May 14, 2008, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Marcel J. LaJoy, Esq., dated December 13, 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

John C. Tunney, Esq., dated December 17, 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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38). However, because the record reflects that defendant committed the instant violent felony offense while awaiting sentence on the prior offense, we find that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed (see Penal Law § 70.25 [2-b]). 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 25, 2011

Patricia L. Morgan, Clerk