PEOPLE v. HAM (1998)

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered September 8, 1997, convicting defendant upon his plea of guilty of the crimes of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree.

Defendant pleaded guilty to the crimes of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree and was sentenced to concurrent terms of one year in jail and a $1,000 fine on driving under the influence count and six months in jail and a $500 fine on the aggravated unlicensed operation count.   On appeal, defense counsel has asserted that no nonfrivolous appealable issues exist and seeks to be relieved of his assignment as counsel for defendant.   Based upon our independent review of the record and defense counsel's brief, we disagree.   In response to County Court's inquiry as to whether he had a valid driver's license, defendant replied he had a Pennsylvania license which he thought had been reinstated at the time of this incident.   Inasmuch as this allocution arguably negates an essential element of the crime of aggravated unlicensed operation of a motor vehicle-operating a motor vehicle while knowing or having reason to know that one's driver's license is suspended or revoked (Vehicle and Traffic Law § 511[1][a];  [3] )-this appeal is not wholly frivolous (compare, People v. Trathen, 227 A.D.2d 734, 642 N.Y.S.2d 347, lv. denied 88 N.Y.2d 996, 649 N.Y.S.2d 403, 672 N.E.2d 629).   Under these circumstances, defense counsel is relieved and new counsel will be assigned to address any and all appealable issues contained in the record.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

MEMORANDUM DECISION.