People v. Pierce , 816 N.Y.S.2d 918 ( 2006 )

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 7, 2004, convicting defendant upon her plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree and was sentenced in accordance with the plea agreement to a prison term of 2 to 6 years. On appeal, appellate counsel for defendant 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 find at least one appellate issue of arguable merit. Where, as here, defendant pleaded guilty but did not waive her right to appeal, she is entitled to argue on appeal that the sentence imposed was harsh and excessive (see People v Lopez, 6 NY3d 248, 256-257 [2006], revg People v Billingslea, 16 AD3d 516 [2005]). We cannot conclude that raising this issue would be “wholly frivolous,” although we express no opinion about the ultimate merit of the issue (People v Stokes, 95 NY2d 633, 636 [2001]). Accordingly, appellate counsel’s application to be relieved of his assignment is granted and new counsel will be assigned to address this issue and any other nonfrivolous issue the record may disclose (see People v Stokes, supra; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

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