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

KA 10-00076
Indictment No: 91-0483-001

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V DANIEL JONES, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on October 26, 2009, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Robert B. Hallborg, Jr., Esq., sworn to October 4, 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 October 6, 2011, the affidavit of Daniel Jones, sworn to October 25, 2011, and the brief of Daniel Jones, dated November 3, 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 appeals from an order that denied his motion pursuant to CPL 440.30 (1�a) for the performance of forensic DNA testing on specified evidence. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38). However, we find that a nonfrivolous issue exists as to whether the People met their burden of establishing with sufficient specificity whether the evidence existed and could be tested (see People v Pitts, 4 NY3d 303). 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