Defendant was indicted in December 2002 of two counts of criminal sale of a controlled substance in the third degree. He was located in Puerto Rico and was extradited to Sullivan County to face the charges in April 2004. Pursuant to a negotiated plea arrangement, defendant was to plead guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of the charges, waive his right to appeal and be sentenced as a second felony offender to 6 to 12 years in prison. After his plea, defendant was sentenced to the agreed-upon term and now appeals.
Upon our review of the record, and with no opinion as to their ultimate resolution, we find issues of arguable merit as to whether or not defendant validly waived his right to appeal and, if not, his right to challenge his sentence as harsh and excessive. Accordingly, appellate counsel's application for leave to withdraw is granted and new counsel will be assigned to address any issues that the record may disclose ( see People v Stokes, 95 NY2d 633, 636; People v Cruwys, 113 AD2d 979, 980, lv denied 67 NY2d 650).
Ordered that the decision is withheld, application to be relieved of assigned granted and new counsel to be assigned.