PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.

KA 11-02526
Indictment No: 11-049

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MICHAEL CRUZ, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Cattaraugus County Court rendered November 1, 2011, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affidavit of Jay D. Carr, Esq., sworn to March 14, 2014, 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 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 jury verdict of grand larceny in the third degree (Penal Law § 155.35 [1]). Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), alleging that no issues are presented that would merit relief on appeal. Upon our review of the record, we find that nonfrivolous issues exist as to the sufficiency of the evidence at trial and as to whether defendant was deprived of the opportunity to testify before the grand jury. We therefore relieve counsel of his assignment and assign new counsel to brief these issues, as well as any other issues that counsel's review of the record may disclose.

Entered: July 3, 2014

Frances E. Cafarell, Clerk