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

KA 10-00800
Indictment No: 09-04-083

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V ISAIAH MCCOY, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Ontario County Court rendered on March 17, 2010, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of John E. Tyo, Esq., dated

February 10, 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

R. Michael Tantillo, Esq., dated February 11, 2011, and the brief of Isaiah McCoy, 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 and criminal possession of a controlled substance in the third degree. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), on the ground that the appeal is wholly frivolous. We conclude, however, that a nonfrivolous issue exists as to whether the forfeiture of defendant's property was improper (see People v Jacobson, 60 AD3d 1326, lv denied 12 NY3d 916; People v Sanders, 289 AD2d 1019). 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: September 30, 2011

Patricia L. Morgan, Clerk