PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.

KA 09-01249
Indictment No: 2008-0013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V FLOYD ALSTON, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Supreme Court, County of Monroe, rendered December 9, 2008, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of David Juergens, Esq., dated January 23, 2012, the notice of motion with proof of service thereof, the brief filed by counsel on behalf of appellant, together with the record on appeal, and the statement of Stephen X. O'Brien, Esq., dated February 3, 2012, 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 robbery in the first degree (Penal Law § 160.15 [4]), and was sentenced to a determinate term of imprisonment of eight 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). However, upon our review of the record we conclude that a nonfrivolous issue exists as to whether defendant's waiver of the right to appeal was valid. 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 20, 2012

Frances E. Cafarell, Clerk