People v. Cole , 950 N.Y.S.2d 791 ( 2012 )

Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered March 18, 2008, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

In satisfaction of, among other things, a two-count indictment, defendant pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal at sentencing. County Court then sentenced defendant to time served, five years of probation and a six-month suspension of his driver’s license. Defendant now appeals.

Appellate counsel seeks to be relieved of his assignment on the ground that no nonfrivolous issue can be raised. Upon our review of the record, counsel’s brief and defendant’s pro se submission, we disagree. Given, among other things, defendant’s challenges to the summary denial of his motion to withdraw his guilty plea and claims of ineffective assistance of counsel, we find that the record reveals the existence of issues that cannot be characterized as wholly frivolous. Without expressing any opinion as to the ultimate merit of such issues, defense counsel’s application to be relieved of his assignment is granted and new counsel will be assigned to address any issues that the record may disclose (see People v Stokes, 95 NY2d 633, 636 [2001]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Peters, EJ., Mercure, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.