PEOPLE v. McKENZIE

After waiving indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree as charged in a superior court information. Under the terms of the plea agreement, defendant executed a written waiver of his right to appeal and was to be sentenced as a second felony offender to 4½ years in prison, to be followed by two years of postrelease supervision. He was subsequently sentenced in accordance with the plea and he now appeals. On appeal, defense counsel seeks to be relieved of his assignment on the ground that there are no nonfrivolous issues that can be raised on appeal.

Upon our review of the record, we discern at least one appellate issue of arguable merit concerning the validity and scope of defendant's appeal waiver ( see People v Lopez, 6 NY3d 248, 256-257; People v Callahan, 80 NY2d 273, 280, 283). If the appeal waiver is determined to be unenforceable, then other issues may be considered, although we make no finding as to their ultimate merit ( see People v Stokes, 95 NY2d 633, 636). Accordingly, the application of defendant's current counsel 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 Cruwys, 113 AD2d 979, 980, lv denied 67 NY2d 650).

Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.