People v. Phelps

82 A.D.3d 1726, 918 N.Y.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2011
• Status: Published

Opinion

Memorandum: Defendant was convicted upon a guilty plea of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. Defendant’s assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38 [1979]). However, because the record reflects that defendant committed the instant violent felony offense while awaiting sentence on the prior offense, we find that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed (see Penal Law § 70.25 [2-b]). 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 Steuben County Court, Joseph William Latham, J.— Attempted Burglary, 2nd Degree). Present — Scudder, P.J., Centra, Sconiers, Gorski and Martoche, JJ.