| People v Fully |
| 2011 NY Slip Op 09668 [90 AD3d 1071] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AmosFully, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered July 1, 2010, convicting him of burglary in the first degree, upon his plea of guilty,and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Richmond County, for a newhearing on the defendant's motion to withdraw his plea of guilty, for which the defendant shall beappointed new counsel, and for a new determination of the motion thereafter, and the appeal isheld in abeyance pending receipt of the Supreme Court's report. The Supreme Court, RichmondCounty, shall file its report with all convenient speed.
Prior to sentencing, the defendant moved to withdraw his plea of guilty. The Supreme Courtassigned a new attorney to represent the defendant at a hearing on the defendant's motion, but, atthe hearing, the new attorney stated on three occasions that it was his "professional" or"knowledgeable" opinion that the defendant's motion was without merit. As the People correctlyconcede, the defendant's right to counsel was adversely affected when his new attorney took aposition adverse to the defendant's with respect to the defendant's motion (see People v Vega, 88 AD3d 1022[2011]; People v Dixon, 63 AD3d957 [2009]; People v Bedoya,53 AD3d 621 [2008]). Accordingly, we must remit the matter to the Supreme Court,Richmond County, for a new hearing on the defendant's motion to withdraw his plea of guilty,for which the defendant shall be appointed new counsel, and for a new determination of themotion thereafter. We hold the appeal in abeyance pending receipt of the Supreme Court's report.We express no opinion as to the merits of the defendant's motion and we decide no other issuesat this time. Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.