PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.

KA 11-00788
SCI No: 10-DI-124

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V JEREMY M. CECCE, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Ontario County Court rendered August 24, 2010, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Robert W. Zimmerman, Esq., dated November 13, 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 R. Michael Tantillo, Esq., dated November 15, 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 his plea of guilty of aggravated driving while intoxicated as a felony (Vehicle and Traffic Law §§ 1192 [2-a]; 1193 [1] [c] [i]), and driving while intoxicated as a felony (§§ 1192 [3]; 1193 [1] [c] [i]), and was sentenced to concurrent indeterminate terms of imprisonment of 1 2/3 to 5 years. Defendant appealed and his assigned counsel now moves to be relieved of the assignment on the ground that the appeal is frivolous (see People v Crawford, 71 AD2d 38).

Upon our review of the record, we conclude that a nonfrivolous issue exists as to the legality of the sentence (see Penal Law § 70.00 [2] [e]). We therefore relieve counsel of her 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: March 15, 2013

Frances E. Cafarell, Clerk