PEOPLE v. RUCKER

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Aaron RUCKER, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, BURNS and LAWTON, JJ.

Defendant was convicted, upon a plea of guilty, of robbery in the first degree (Penal Law § 160.15[2] ) and was sentenced, as a violent felony offender, to an indeterminate term of incarceration of 5 to 10 years and restitution in the amount of $2,636.   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 a brief in which he concludes that there are no nonfrivolous issues meriting this Court's consideration.   The record establishes that, in exchange for his plea, defendant was promised an indeterminate sentence of 3 to 6 years, but that, at sentencing, County Court imposed an enhanced sentence based upon defendant's failure to cooperate with probation department officers preparing the pre-sentence investigation report.   Those facts raise the issue whether the court properly enhanced defendant's sentence (see, People v. Parker, 271 A.D.2d 63, 711 N.Y.S.2d 656).   Therefore, we relieve counsel of his assignment and assign new counsel to brief that issue, as well as any others that counsel's review of the record may disclose.

Case held, decision reserved, counsel's motion to be relieved of assignment granted and new counsel to be assigned.

MEMORANDUM: