
    The People of the State of New York, Respondent, v John David Marx, Also Known as J.D. Marx, Appellant.
    [796 NYS2d 562]
   Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered November 13, 2003, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant was charged in a four-count indictment with various drug-related crimes. He pleaded guilty to two counts of criminal sale of a controlled substance in the third degree in satisfaction of the indictment. As part of the plea agreement, defendant waived his right to appeal and was to be sentenced to concurrent prison terms of 3x/2 to 10x/2 years. Prior to sentencing, defendant indicated his desire to withdraw his plea as involuntary on the basis that his attorney had not adequately advised him. In response, County Court adjourned sentencing and assigned new counsel. After defendant had an opportunity to confer with his newly assigned counsel, he moved to withdraw one of his two felony pleas. The People did not oppose the motion. County Court then vacated defendant’s plea to one of the counts of criminal sale of a controlled substance in the third degree and sentenced him on the remaining count to the agreed-upon sentence. He now appeals.

Defense counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Upon our review of the record, defendant’s pro se submission and defense counsel’s brief, we agree. The judgment of conviction is, accordingly, affirmed and defense counsel’s application for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]).

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.  