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

KAH 12-01264
Index No: 21,209-12

THE PEOPLE OF THE STATE OF NEW YORK EX REL., LEROY PEOPLES, PETITIONER-APPELLANT, V NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT.

An appeal having been taken to this Court from a judgment (denominated order) of the Supreme Court, Wyoming County, entered May 29, 2012, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Norman P. Effman, Esq., sworn to March 12, 2013, 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 pro se supplemental brief of appellant dated April 23, 2013, 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: Petitioner appeals from a judgment of Supreme Court that denied his petition for a writ of habeas corpus. Assigned counsel for petitioner moves to be relieved of the assignment on the ground that there are no appealable issues (see People v. Crawford, 71 AD2d 38). Upon a review of the record, we conclude that a nonfrivolous issue exists as to whether Supreme Court erred in denying the petition (see People ex rel. Keitt v McMann, 18 NY2d 257). 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: June 28, 2013

Frances E. Cafarell, Clerk