| People v Bernard |
| 2012 NY Slip Op 01615 [92 AD3d 952] |
| February 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidBernard, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered November 17, 2009, convicting him of robbery in the first degree (four counts), robberyin the second degree (two counts), criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, and criminal possession of stolen property inthe fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, for a newdetermination of the defendant's motion to set aside the verdict pursuant to CPL 330.30, uponwhich motion the defendant's counsel on this appeal shall represent him, and the appeal is held inabeyance in the interim. The Supreme Court, Queens County, shall file the new determinationwith all convenient speed.
The defendant was convicted, upon a jury verdict, of four counts of robbery in the firstdegree and various other offenses. Prior to sentencing, the defendant moved, pro se, to set asidethe verdict pursuant to CPL 330.30 on the ground that a certain witness was not called to testifyat trial. At the sentencing hearing, the Supreme Court asked defense counsel if he was adoptingthe defendant's motion. Defense counsel responded, in sum and substance, that he had reviewedthe motion and did not adopt it. He added that if he were to adopt the motion, he would have hadto indicate that he had "a belief that it had some legal merit." The Supreme Court proceeded todeny the defendant's motion and impose sentence.
Defense counsel, by taking a position adverse to his client on the motion to set aside theverdict pursuant to CPL 330.30, deprived the defendant of effective assistance of counsel (see People v Gruttadauria, 40 AD3d879, 880 [2007]; People vRosenbauer, 1 AD3d 1050 [2003]; People v Betsch, 286 AD2d 887 [2001];People v Burton, 251 AD2d 1020 [1998]). Accordingly, the matter must be remitted tothe Supreme Court, Queens County, for a new determination of the motion, upon which motionthe defendant's counsel on this appeal shall represent him. We express no opinion as to the meritsof the defendant's motion and we decide no other issues at this time. Dillon, J.P., Balkin, Eng andCohen, JJ., concur.