| THE PEOPLE V MICHAEL J. JUDD, JR. |
| Motion No: KA 11-01149 |
| Slip Opinion No: 2012 NY Slip Op 86955(U) |
| Decided on September 28, 2012 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.
KA 11-01149
SCI No: 10-S-29
| THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MICHAEL J. JUDD, JR., DEFENDANT-APPELLANT. |
An appeal having been taken to this Court from a judgment of Orleans County Court rendered March 7, 2011, and counsel having moved to be relieved of assignment,
Now, upon reading and filing the affirmation of Michael A. Rosenhouse, Esq., dated February 24, 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, the statement of Michael Judd dated March 15, 2012, the statement of Joseph V. Cardone, Esq., filed March 22, 2012, the brief of Michael Judd dated June 7, 2012, the brief of respondent dated June 26, 2012, and the brief of Michael Judd dated July 2, 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 by plea of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). County Court found defendant to be a "second felony offender" and sentenced him to a determinate term of imprisonment of five years and five years postrelease supervision. Defendant appealed and his assigned counsel now moves to be relieved of the assignment, alleging that there are no nonfrivolous grounds for appeal (see People v Crawford, 71 AD2d 38). The record reveals that during the plea proceeding, defendant was informed by the court that a five year determinate sentence was "mandatory." Given that the mandatory minimum determinate sentence for a second felony offender convicted of a class D violent felony is three years (Penal Law § 70.06 [6] [c]), we conclude that a nonfrivolous issue exists as to whether defendant's guilty plea was knowing, voluntary and intelligent. We therefore 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 28, 2012
FRANCES E. CAFARELL, Clerk