                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 4, 2014                     105573
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

SOLOMON A. WILSON,
                    Appellant.
________________________________


Calendar Date:   October 21, 2014

Before:   McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

                               __________


      Joseph Nalli, Fort Plain, for appellant, and appellant
pro se.

      Louise K. Sira, District Attorney, Johnstown (James P.
Riley of counsel), for respondent.

                               __________


      Appeal from a judgment of the County Court of Fulton County
(Hoye, J.), rendered November 1, 2012, convicting defendant upon
his plea of guilty of the crimes of criminal possession of a
controlled substance in the third degree and conspiracy in the
fourth degree.

      In satisfaction of two pending indictments, defendant
pleaded guilty to criminal possession of a controlled substance
in the third degree and conspiracy in the fourth degree, and
waived his right to appeal. In accordance with the plea
agreement, County Court sentenced defendant, as a second felony
offender, to concurrent prison terms of five years, followed by
two years of postrelease supervision, and 1½ to 3 years,
respectively. On appeal, defense counsel seeks to be relieved of
his assignment as counsel for defendant on the ground that there
                              -2-                  105573

are no nonfrivolous issues that can be raised on appeal. Upon
our review of the record, defense counsel's brief and defendant's
pro se submission, we disagree. Defendant's pro se brief
challenges the validity of the waiver of his right to appeal, as
well as the validity of the indictment charging him with
conspiracy in the fourth degree. Inasmuch as these issues cannot
be characterized as "wholly frivolous," the application of
defense counsel to be relieved of his assignment is granted and
defendant will be assigned new counsel to address these issues
and any other issues that the record may disclose (People v
Stokes, 95 NY2d 633, 636 [2001]; see People v Cruwys, 113 AD2d
979 [1985], lv denied 67 NY2d 650 [1986]).

     McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
