People v. Phillips , 785 N.Y.S.2d 721 ( 2004 )

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 22, 2001 in Albany County, convicting defendant upon his plea of guilty of two counts of the crime of burglary in the third degree.

In satisfaction of two indictments, defendant pleaded guilty to two counts of the crime of burglary in the third degree and may have waived his right to appeal. Defendant thereafter was sentenced in accordance with the negotiated plea agreement to consecutive prison terms of 21/3 to 7 years and 1 to 3 years. On appeal, defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. Upon our review of the record, defense counsel’s brief and defendant’s pro se submission, we disagree. Defendant’s submission raises issues which would be reviewable if his oral appeal waiver were determined to be inadequate (see People v Seaberg, 74 NY2d 1 [1989]; see e.g. People v Clow, 10 AD3d 803 [2004]). Inasmuch as these issues cannot be characterized as “wholly frivolous,” the application of defense counsel to be relieved of his assignment is granted and defendant will be assigned new counsel to address any issues which the" record may disclose (People v Stokes, 95 NY2d 633, 636 [2001]; see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.