New York Supreme Court Appellate Division, Fourth Department
March 25, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ALINA PHELPS, DEFENDANT-APPELLANT.
Appeal from Judgment of Steuben County Court, Joseph William Latham, J. - Attempted Burglary, 2nd Degree.
People v Phelps
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.
Decided on March 25, 2011
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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 ), 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). However, because the record reflects that defendant committed the instant violent felony offense while awaiting sentence on the prior offense, we find that a non-frivolous 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.
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.
Filed March 25, 2011.
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