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

KA 09-02285
Indictment No: 2008-0661

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V NATHANIEL MOSS, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Supreme Court, Erie County, rendered August 28, 2009, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Wayne C. Felle, Esq., sworn to January 21, 2011, 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

Donna A. Milling, Esq., dated January 25, 2011, 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 failing to register a change of address as a sex offender (Corrections Law § 168-f [4]), and was sentenced to a definite sentence of imprisonment of one year. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38). However, upon our review of the record we conclude that a nonfrivolous issue exists as to whether Supreme Court improperly imposed an enhanced sentence without affording defendant an opportunity to withdraw his plea. 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