People v. Woodward , 536 N.Y.S.2d 689 ( 1988 )

— Appeal from a judgment, Supreme Court, New York County (George Roberts, J.), rendered May 14, 1985, which convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree and sentenced him to a prison term of 2 to 4 years, and which sentenced defendant to a concurrent prison term of lVs to 4 years for violation of probation imposed on an earlier conviction of the Supreme Court, New York County (Herbert Altman, J.), rendered January 9, 1981, for criminal sale of a controlled substance in the fifth degree, held in abeyance; the motion by assigned counsel to withdraw is denied; and assigned counsel is directed to serve a supplemental brief within 60 days of the date of this court’s order.

Assigned counsel has filed a brief pursuant to Anders v California (386 US 738) and People v Saunders (52 AD2d 833), stating that there are no nonfrivolous issues presented for review and requesting permission to withdraw.

However, the record reveals that defendant moved to withdraw his plea of guilty on the ground that the original plea was conditioned on there not being a suppression issue, but that, in fact, a significant search and seizure issue exists. While the motion was denied in a written opinion by Justice Herbert Altman prior to the time of sentence, the brief submitted by assigned counsel fails to make any mention of such motion.

Accordingly, counsel’s Anders/Saunders brief is deficient. Counsel is directed to investigate this possible appellate issue and file a supplemental brief addressing the matter and determining whether it presents any nonfrivolous issues that should be considered on appeal. Concur — Kupferman, J. P., Sullivan, Milonas and Ellerin, JJ.