Appeal from a judgment of the Justice Court of the Village of Port Chester, Westchester County (Joseph A. Vita, J.), rendered July 9, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.

ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal. New counsel is directed to serve and file a brief within 90 days after the date of this decision. The People may serve and file a respondent's brief within 21 days after the service upon them of the appellant's brief. Appellant's new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent's brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.

Assigned counsel submitted an Anders brief setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal (see Anders v California, 386 US 738 [1967]). A review of the record, however, reveals the existence of at least a nonfrivolous issue concerning the propriety of the condition of defendant's probation apparently requiring him to provide a DNA sample pursuant to Executive Law § 995-c (cf. Executive Law § 995 [7]). We therefore grant assigned counsel's motion to withdraw as counsel and assign new counsel to prosecute the appeal on defendant's behalf, with respect to this issue or any other issue pertaining to the plea or sentence that can be identified.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: February 16, 2011