PeoplevWilson ( 2014 )

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: December 4, 2014 105573 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER SOLOMON A. WILSON, Appellant. ________________________________ Calendar Date: October 21, 2014 Before: McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ. __________ Joseph Nalli, Fort Plain, for appellant, and appellant pro se. Louise K. Sira, District Attorney, Johnstown (James P. Riley of counsel), for respondent. __________ Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered November 1, 2012, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and conspiracy in the fourth degree. In satisfaction of two pending indictments, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and conspiracy in the fourth degree, and waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant, as a second felony offender, to concurrent prison terms of five years, followed by two years of postrelease supervision, and 1½ to 3 years, respectively. On appeal, defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there -2- 105573 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 pro se brief challenges the validity of the waiver of his right to appeal, as well as the validity of the indictment charging him with conspiracy in the fourth degree. 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 these issues and any other issues that 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]). McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur. ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned. ENTER: Robert D. Mayberger Clerk of the Court