| People v Kirkland |
| 2009 NY Slip Op 09912 [68 AD3d 1794] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WesleyKirkland, Appellant. |
—[*1]
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered March27, 2008. The judgment convicted defendant, upon his plea of guilty, of murder in the seconddegree.
It is hereby ordered that the case is held, the decision is reserved, and the matter is remittedto Erie County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of murder in thesecond degree (Penal Law § 125.25 [3]). We agree with defendant that he was deprived ofeffective assistance of counsel inasmuch as his attorney took a position adverse to him whendefendant moved pro se for the assignment of new counsel and to withdraw his guilty plea.Although defense counsel had no duty to support the motions, he became a witness againstdefendant by taking a position adverse to him, thereby depriving defendant of effectiveassistance of counsel (see People vHunter, 35 AD3d 1228, 1228 [2006]; People v Lewis, 286 AD2d 934, 934[2001]). County Court "should not have determined the motion[ ] [to withdraw the plea] withoutfirst assigning a different attorney to represent defendant" (People v Chrysler, 233 AD2d928, 928 [1996]). We therefore hold the case, reserve decision, and remit the matter to CountyCourt for the assignment of counsel and a de novo determination of the motion to withdraw theguilty plea (see People v Chaney, 294 AD2d 931 [2002]). Present—Scudder, P.J.,Hurlbutt, Smith and Centra, JJ.