Opinion
304
February 27, 2003.
Appeal from judgment, Supreme Court, New York County (Renee White, J.), rendered February 6, 2001, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 9 years, held in abeyance, the application by assigned counsel to withdraw on the ground that the appeal is wholly frivolous (People v. Saunders, 52 A.D.2d 833) is granted to the extent of relieving counsel, assigning Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, New York, New York 10006, (212) 577-2523, as new counsel, and enlarging the time to perfect the appeal to the September 2003 Term of this Court.
Robert L. Moore, for Defendant-Appellant.
Before: Tom, J.P., Andrias, Buckley, Williams, Friedman, JJ.
While we express no opinion with respect to the merits, or lack thereof, of any possible issue, counsel's submission is inadequate to demonstrate that a conscientious examination of the record and the applicable law has been performed (see People v. Reyes, 231 A.D.2d 478). In his letter to defendant advising him that no non-frivolous issues exist on appeal, counsel misinformed defendant that, having pleaded guilty, he could not challenge the suppression ruling and could not challenge his sentence as harsh and excessive. Absent a waiver of the right to appeal, both of these issues survive a guilty plea (CPL 710.70; People v. Thompson, 60 N.Y.2d 513). Since our own review cannot substitute for the single-minded advocacy of appellate counsel (People v. Casiano, 67 N.Y.2d 906), assignment of new counsel is required (see People v. Moore, 208 A.D.2d 357).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.