The People of the State of New York, Respondent, v. Jose Benitz, Also Known as Jose Benitez, Appellant

The People of the State of New York, Respondent, v Jose Benitz, Also Known as Jose Benitez, Appellant. [MAJORITY] Appeal from judgment, Supreme Court, New York County (Berman, J.), rendered December 10, 1979, convicting defendant on a plea of guilty of criminal sale of a controlled substance in the third degree and sentencing him to a term of one to three years held in abeyance and assigned counsel is directed to file a new brief within two weeks from the date of entry of this court’s order. Assigned counsel has filed a brief pursuant to People v Saunders (52 AD2d 833) stating that after an examination of the record he believes there are no appealable issues. The court’s examination of the record discloses at least one issue that seems to us appealable and that cannot be characterized as frivolous. In his responses to the trial court’s questions prior to the entry of the plea, the defendant set forth facts from which it could at least arguably be urged that he acted as an agent of the police officer in the transaction and was accordingly not guilty of the crime of criminal sale of a controlled substance. (See People v Lam Lek Chong, 45 NY2d 64, 75.) Accordingly, an appealable issue as to the validity of the plea underlying the conviction appealed from is presented. (See People v Serrano, 15 NY2d 304.) Assigned counsel is directed to file a brief addressed to that issue and whatever other appealable issues his further research may disclose. Concur — Murphy, P. J., Birns, Sandler, Bloom and Fein, JJ.