PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, NOWAK, AND KEANE, JJ.

KA 24-00662

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V JOSE CONCEPCION, DEFENDANT-APPELLANT. Indictment No: 9040

An appeal having been taken to this Court from a judgment of the Wyoming County Court, rendered April 24, 2024, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that the motion to relieve counsel of assignment is granted and new counsel is to be assigned.

Memorandum: Defendant appeals from a judgment convicting him of assault in the second degree (Penal Law § 120.05 [3]) and sentencing him to a determinate term of imprisonment of five years and five years of postrelease supervision. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38 [4th Dept 1979]).

The predicate felony statement in this matter reflects that defendant was convicted of aggravated harassment of an employee by an incarcerated individual, a class E felony (see Penal Law § 240.32), which is not a violent felony offense (see Penal Law § 70.02 [1] [d]). Thus, the court incorrectly found that defendant had a prior violent felony conviction for purposes of sentencing, and defendant was misinformed as to the minimum term of incarceration to which he was exposed (see Penal Law § 70.06 [6] [c]). Defendant was also misinformed as to the maximum period of postrelease supervision to which he was exposed (see Penal Law § 70.45 [2]). We therefore conclude that a nonfrivolous issue exists as to whether defendant's plea was knowing, voluntary and intelligent, and we 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: January 31, 2025

Ann Dillon Flynn

Clerk of the Court