| People v Dixon |
| 2009 NY Slip Op 05152 [63 AD3d 957] |
| June 16, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v LaTonya Dixon, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.),rendered November 9, 2007, convicting her of assault in the second degree, upon her plea ofguilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Nassau County, to hear and reporton the defendant's motion to withdraw her plea of guilty, on which motion the defendant'sappellate counsel shall represent her, and the appeal is held in abeyance in the interim. TheSupreme Court, Nassau County, shall file its report with all convenient speed.
On the record presented, the Supreme Court erred in determining the defendant's motion forleave to withdraw her plea of guilty without a hearing after defense counsel adopted a positionadverse to the defendant (see People v Earp, 7 AD3d 538, 539 [2004]; People vCaccavale, 305 AD2d 695 [2003]). The defendant's right to counsel was adversely affectedwhen her attorney, in effect, became a witness against her and took a position adverse to her(see People v Bedoya, 53 AD3d 621 [2008]; People v Bryant, 22 AD3d 676, 677[2005]; see also People v Hunter, 35 AD3d 1228 [2006]; People v Chaney, 294AD2d 931, 932 [2002]). The Supreme Court should have assigned a different attorney torepresent the defendant before it determined the motion to withdraw the plea (see People vBedoya, 53 AD3d 621 [2008]). Accordingly, we remit the matter to the Supreme Court,Nassau County, to hear and report on the defendant's motion, on which the defendant is to berepresented by the counsel assigned to represent her on this appeal. We hold the appeal inabeyance pending receipt of the Supreme Court's report. We express no opinion as to the meritsof the defendant's motion, and we do not pass upon the remaining contention raised by thedefendant on appeal. Rivera, J.P., Miller, Balkin and Austin, JJ., concur.