People v. Jones

94 A.D.3d 1482, 942 N.Y.S.2d 835

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 appeals from an order that denied his motion pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence. Defendant’s assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38 [1979]). However, we find that a nonfrivolous issue exists as to whether the People met their burden of establishing with sufficient specificity whether the evidence existed and could be tested (see People v Pitts, 4 NY3d 303 [2005]). 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 Order of Supreme Court, Erie County, Penny M. Wolfgang, J. — CPL 440.30 [1-a]). Present — Scudder, EJ., Smith, Fahey and Sconiers, JJ.