No. KAH 08-01509.
July 2, 2009.
(Appeal from Supreme Court, Wyoming County, Mark H. Dadd, J. — Habeas Corpus.)
Present: Scudder, P.J., Smith, Centra, Peradotto and Green, JJ.
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: In denying relator's habeas corpus petition, Supreme Court held that "[u]pon his release to post-release supervision, the balance of the maximum term on his indeterminate sentence was properly held in abeyance pursuant to Penal Law § 70.45 (5) (a)." However, relator's indeterminate sentence arose from a crime committed in 1997, prior to the effective date of Penal Law § 70.45. Thus, a nonfrivolous issue exists as to whether this provision was properly applied. 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.