PEOPLE v. SPENCER (2008)

Defendant was convicted upon a guilty plea of attempted criminal possession of a controlled substance in the fifth degree (Penal Law §§ 110.00, 220.06[2] ) and criminally possessing a hypodermic instrument (Penal Law § 220.45).   Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v. Crawford, 71 A.D.2d 38, 421 N.Y.S.2d 485, and has submitted an affirmation in which he concludes that there are no nonfrivolous issues meriting this Court's consideration.   The record establishes that defendant moved prior to sentencing to withdraw his plea.   The facts raise the issue of whether the court abused its discretion in denying defendant's motion.   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.

The case is held, the decision is reserved, the motion to relieve counsel of assignment is granted, and new counsel is to be assigned.  (Appeal from Judgment of Jefferson County Court, Kim H. Martusewicz, J.-Attempted Criminal Possession Controlled Substance, 5th Degree.)

MEMORANDUM: