People v. Haight

—Appeal from a judgment of the County Court of Tioga County (Squeglia, J.), rendered May 21, 1999, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

Defendant pleaded guilty to the crime of rape in the first degree with the understanding that County Court would sentence him to 12 V2 years in prison. Defendant failed to appear for sentencing and, after being apprehended and returned to this State, was sentenced to a prison term of 15 years. Defense counsel seeks to be relieved of her assignment as counsel for defendant on the ground that no nonfrivolous issues exist. Based upon our review of the record, defense counsel’s brief and defendant’s pro se submissions, we cannot agree. Where, as here, defendant did not waive his right to appeal as part of the plea agreement and an enhanced sentence was imposed, we cannot conclude that an appeal would be “wholly frivolous,” regardless of whether any issues are ultimately determined to be without merit (see, People v Espino, 279 AD2d 798). Inasmuch as a review of the record and defendant’s pro se submissions raise arguably meritorious issues, we grant defense counsel’s application to be relieved of her assignment and new counsel will be assigned to address any issues that the record may disclose (see, People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).

Mercure, J. P., Crew III, Peters, Mugglin and Rose, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.