New York Supreme Court Appellate Division, Fourth Department
February 10, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
HERLAND W. BOUWENS, III, 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 third degree (2 counts) (Penal Law § 220.39 ), and was sentenced to concurrent determinate terms of imprisonment of three and one-half 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), and has submitted an affidavit in which he concludes that there are no non-frivolous issues meriting this Court's consideration. However, upon our review of the record we conclude that a non-frivolous 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. (Filed Feb. 10, 2011.)
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