People v Ortiz

People v Ortiz 2007 NY Slip Op 05123 [41 AD3d 1328] June 8, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent, v Felix Ortiz, Appellant.

—[*1]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 burglary in the second degree (Penal Law § 140.25 [1] [b]) and assault in the second degree (Penal Law § 120.05 [2]). He was sentenced as a second felony offender to a determinate term of incarceration of six years together with five years postrelease supervision on the burglary conviction and a concurrent indeterminate term of two to four years together with five years postrelease supervision on the assault conviction. Defendant's assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38 [1979]), 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 was sentenced as a second felony offender to an indeterminate term of incarceration for a class D violent felony (assault in the second degree). The facts raise the issue of whether defendant received an illegal sentence (see Penal Law § 70.06 [6] [c]). 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. Finally, we note that the sentence set forth in the certificate of conviction with regard to defendant's assault conviction is inconsistent with the sentence imposed by the court. (Appeal from Judgment of Ontario County Court, James R. Harvey, J.—Assault, 2nd Degree). Present—Scudder, P.J., Martoche, Smith, Centra and Peradotto, JJ.