The People of the State of New York, Respondent, v. Jerry Pitts, Appellant

The People of the State of New York, Respondent, v Jerry Pitts, Appellant. [737 NYS2d 312] [MAJORITY] —Case held, decision reserved, and counsel’s motion to be relieved of assignment granted. Memorandum: Defendant was convicted upon his plea of guilty of assault in the second degree (Penal Law § 120.05 [1]) and was sentenced as a persistent violent felony offender to an indeterminate term of 12 years to life. Defendant’s assigned appellate counsel has moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38) and has submitted a brief in which he concludes that there are no non-frivolous issues meriting this Court’s consideration. The fact that defendant pleaded guilty to assault in the second degree as a lesser included offense under count 19 of the indictment raises the issue whether defendant’s plea conflicts with the express plea constraints set forth in CPL 220.10 (4) (see, People v Johnson, 89 NY2d 905, 907). We therefore 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. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Assault, 2nd Degree.) Present — Green, J. P., Hayes, Scudder, Kehoe and Burns, JJ.