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People v. Wisniewski

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


June 11, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
FRANK WISNIEWSKI, DEFENDANT-APPELLANT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MEMORANDUM AND ORDER

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 fifth degree (Penal Law § 220.31), and was sentenced as a second felony drug offender to a determinate term of imprisonment of two and one-half years and two years postrelease supervision. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and has submitted an affidavit in which he concludes that there are no non-frivolous issues meriting this Court's consideration. A review of the sentencing minutes reveals that the court did not ask defendant prior to sentencing whether he wished to controvert the allegations contained in the second felony offender statement as required by CPL § 400.21 (3). Therefore, a non-frivolous issue exists as to the legality of the sentence. Accordingly, 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 Wyoming County Court, Michael F. Griffith, J. - Criminal Sale of a Controlled Substance, 5th Degree).

PRESENT: SCUDDER, P.J., MARTOCHE, SCONIERS, GREEN, AND GORSKI, JJ.

20100611

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