People v. Bouwens

81 A.D.3d 1388, 918 N.Y.S.2d 394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2011
• Status: Published

Opinion

— The case is held, the 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 guilty plea of criminal sale of a controlled substance in the third degree (two counts) (Penal Law § 220.39 [1]), and was sentenced to concurrent determinate terms of imprisonment of 3 Vs years and three years’ postrelease supervision. Defendant’s assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38 [1979]), and has submitted an affidavit in which he concludes that there are no nonfrivolous issues meriting this Court’s consideration. However, upon our review of the record we conclude that a nonfrivolous issue exists as to whether the court erred in failing either to offer the defendant the opportunity to withdraw his plea, or to conduct a hearing to determine whether defendant had met the requirements of the People’s plea offer or had been prevented from doing so. Therefore, we 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. (Appeal from Judgment of Ontario County Court, Frederick G. Reed, A.J.— Criminal Sale of a Controlled Substance, 3rd Degree.) Present— Scudder, P.J., Fahey, Peradotto, Lindley and Martoche, JJ.