People v. Irizarry

Appeal from a judgment of the Supreme Court, Bronx County (Fred W. Eggert, J.), rendered January 11, 1984, which, after a bench trial, convicted defendant of criminal sale of a controlled substance in the third degree and sentenced him to an indeterminate term of imprisonment of from 6 to 12 years, is held in abeyance, with new counsel to be assigned for defendant and present counsel now relieved (People v Saunders, 52 AD2d 833 ).

Defendant’s counsel, in purported compliance with Anders v California ( 386 US 738 , reh denied 388 US 924 ) and People v Saunders (supra), has submitted a brief urging that there are no nonfrivolous issues to be raised on appeal. Defendant has responded by submitting a pro se brief on his own behalf, arguing that the People failed to disprove his agency defense in this narcotics sale transaction beyond a reasonable doubt. We find the merit of this contention sufficiently colorable to warrant its presentation by "an active advocate in behalf of his client” (Anders v California, supra, at 744 ) and direct that the appeal go forward accordingly (see, People v Gonzalez, 47 NY2d 606 ). Concur—Sandler, J. P., Carro, Kassal, Ellerin and Wallach, JJ.