Opinion
15690.
February 9, 2006.
Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered August 25, 2003, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
Peter A. Dumas, Malone, for appellant, and appellant pro se.
Derek P. Champagne, District Attorney, Malone, for respondent.
Before: Cardona, P.J., Spain, Mugglin, Rose and Kane, JJ., concur.
Defendant pleaded guilty to assault in the second degree and waived his right to appeal with the exception of the sentence imposed. Prior to sentencing, defendant moved to withdraw his plea claiming that the plea was a result of coercion. County Court denied the motion and sentenced defendant as a second felony offender in accordance with the plea agreement to the minimum prison term of five years followed by three years of postrelease supervision. On appeal, defense counsel seeks to be relieved of his assignment as counsel on the ground that there are no nonfrivolous issues that can be raised on appeal. A review of the record, defense counsel's brief and defendant's pro se submission reveals the existence of various issues that are "`arguable on their merits (and therefore not frivolous)'" ( People v. Stokes, 95 NY2d 633, 636, quoting Anders v. California, 386 US 738, 744), including whether County Court erred in denying defendant's motion to withdraw his plea. Inasmuch as such issue cannot be characterized as wholly frivolous, 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, supra; 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.