PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.

KA 07-00321
Indictment No: 2002-0614

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V TONY L. IVEY, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Monroe County Court rendered April 24, 2003, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of James S. Hinman, Esq., dated September 27, 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 Stephen X. O'Brien, Esq., dated October 26, 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 assault in the second degree and was sentenced to a determinate term of imprisonment of four years and five 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 affirmation in which he concludes that there are no nonfrivolous issues that can be raised on appeal. The record reflects that defendant moved prior to sentencing to withdraw his plea, claiming, inter alia, that the plea was coerced. We conclude that a nonfrivolous issue exists as to whether the court erred in denying defendant's motion without conducting a hearing. 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: April 29, 2011

Patricia L. Morgan, Clerk