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

KA 11-00096
Indictment No: 2010-181

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V JOHN ROCKWELL, DEFENDANT-APPELLANT.

An appeal having been taken to this Court from a judgment of the Livingston County Court rendered December 16, 2010, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Jeannie D. Michalski, Esq., dated April 10, 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 the statement of Joshua J. Tonra, Esq., dated April 24, 2014, 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 guilty plea of aggravated driving while intoxicated as a felony (Vehicle and Traffic Law §§ 1192 [2-a]; 1193 [1] [c] [i]), and was sentenced to an indeterminate term of imprisonment of one to three years and a $1000 fine, and a consecutive term of five years probation. Defendant's assigned appellate counsel has moved to be relieved of the assignment on the ground that there are no nonfrivolous issues for appeal (see People v Crawford, 71 AD2d 38). Upon our review of the record, we conclude that a nonfrivolous issue exists as to whether the court erroneously imposed a more severe sentence than that bargained for without affording defendant the opportunity to withdraw his plea (see People v Lafferty, 60 AD3d 1318). 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: July 3, 2014

Frances E. Cafarell, Clerk