People v. Martinez

284 A.D.2d 1019, 730 N.Y.S.2d 888, 2001 N.Y. App. Div. LEXIS 5912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2001
• Status: Published

Opinion

—Case held, decision reserved, motion to relieve counsel of assignment granted, and new counsel to be assigned. Memorandum: Defendant was convicted following a jury trial of kidnapping in the second degree (Penal Law § 135.20), assault in the second degree (Penal Law § 120.05 [6]), reckless endangerment in the first degree (Penal Law § 120.25), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). He was sentenced to an aggregate term of incarceration of I2V2 to 25 years. Defendant’s assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court’s consideration. The record establishes that the complainant identified defendant as her assailant based upon a photo array constructed after the receipt of an anonymous tip. Police then obtained a warrant to search defendant’s automobile and executed the search warrant. Defendant received the maximum permissible sentences on his convictions. The facts raise the issues whether the victim’s photo identification of defendant should have been suppressed; whether there was probable cause for the issuance of the warrant to search defendant’s automobile; and whether the sentence is unduly harsh or severe. Therefore, we relieve counsel of his assignment and assign new counsel to brief those issues, as well as any other issues that counsel’s review of the record may disclose. (Appeal from Judgment of Cayuga County Court, Corning, J. — Kidnapping, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Wisner, Kehoe and Burns, JJ.