Opinion
14746.
July 22, 2004.
Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered March 11, 2003, convicting defendant upon his plea of guilty of the crime of rape in the third degree.
Before: Cardona, P.J., Crew III, Carpinello, Mugglin and Rose, JJ., concur.
Defendant pleaded guilty to the crime of rape in the third degree with the understanding that he would receive a sentence of 2 to 4 years. Prior to sentencing, defendant moved to withdraw his plea. County Court denied defendant's motion and sentenced defendant as a second felony offender in accordance with the negotiated plea agreement. On appeal, defense counsel seeks to be relieved of her assignment as counsel for defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. A review of the brief submitted by defense counsel establishes that her application to withdraw is primarily based upon defendant's alleged waiver of his right to appeal. However, there is no indication in the record that defendant waived his right to appeal. Without deciding whether the record discloses any nonfrivolous issues to be raised on appeal, we are compelled to grant defense counsel's application and assign new counsel to make a more thorough review of the record and address any issues that the record may disclose ( see People v. Stokes, 95 NY2d 633; People v. Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).
Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.