New York Supreme Court Appellate Division, Fourth Department
April 29, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
TONY L. IVEY, DEFENDANT-APPELLANT.
Decided on April 29, 2011
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 assault in the second degree and was sentenced to a determinate term of imprisonment of four years and five 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 affirmation in which he concludes that there are no non-frivolous issues that can be raised on appeal. The record reflects that defendant moved prior to sentencing to withdraw his plea, claiming, inter alia, that the plea was coerced. We conclude that a non-frivolous issue exists as to whether the court erred in denying defendant's motion without conducting a hearing. 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 Monroe County Court, John J. Connell, J. - Assault, 2nd Degree).
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.
(Filed Apr. 29, 2011.)
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