People v. Cummings

Case held, decision reserved, motion to relieve counsel’s assignment granted, and new counsel to be assigned. Memorandum: Defendant has appealed from a judgment entered June 25, 1987. His attorney has moved to be relieved as assigned counsel pursuant to People v Crawford (71 AD2d 38) on the ground that no nonfrivolous issues exist on the appeal. We find at least one nonfrivolous issue, concerning the propriety of the court’s charge, as argued by defendant in his pro se supplemental brief. Therefore, *944we relieve counsel of his assignment and assign new counsel to file a substantive brief addressing that issue and any others that counsel’s review of the record may disclose. On this motion we do not consider counsel’s argument that defendant waived his right to appeal. That argument is based on events on July 9, 1987, after the entry of the judgment appealed from, and is not part of the record on this appeal. (Appeal from judgment of Supreme Court, Monroe County, Bergin, J. —robbery, first degree.) Present—Callahan, J. P., Boomer, Green, Pine and Lawton, JJ.