People v. Davis , 738 N.Y.S.2d 149 ( 2002 )

—Case held, decision reserved, motion to relieve counsel of assignment granted, and new counsel to be assigned. Memorandum: Defendant was convicted following a jury trial of promoting prison contraband in the first degree (Penal Law § 205.25 [2]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). He was sentenced to concurrent, indeterminate terms of 3V4 to 6V2 years. Defendant’s assigned counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and he has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court’s consideration. The record shows that the minimum term of defendant’s sentence may be illegal. The minimum period of imprisonment under the indeterminate sentence “shall be not less than one year nor more than one-third of the maximum term imposed.” (see, Penal Law § 70.00 [3] [b]). The court, however, imposed a minimum period that was one half of the maximum term. A review of the sentencing minutes shows that defendant was not adjudicated a second felony offender and the record on appeal contains no reference to the People filing a statement pursuant to CPL 400.21 (2). Therefore, a nonfrivolous issue exists concerning the legality of the sentence. Accordingly, we relieve counsel of his assignment and assign new counsel to brief that issue as well as any other issues that counsel’s review of the record may disclose. (Appeal from Judgment of Chautauqua County Court, Ward, J. — Promoting Prison Contraband, 1st Degree.) Present— Green, J.P., Pine, Kehoe and Gorski, JJ.