| People v Graves |
| 2012 NY Slip Op 03663 [95 AD3d 1034] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nisean Graves, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace,J.), rendered November 30, 2010, convicting him of attempted rape in the first degree, upon hisplea of guilty, and imposing sentence.
Ordered that the matter is remitted to the County Court, Westchester County, for a hearing onthe defendant's motion to withdraw his plea of guilty, for which the defendant shall be appointednew counsel, and for a new determination of the motion thereafter, and the appeal is held inabeyance pending receipt of the County Court's report. The County Court, Westchester County,shall file its report will all convenient speed.
At sentencing, the defendant moved to withdraw his plea of guilty, contending that hisassigned counsel failed to adequately represent him. In light of the defendant's motion, assignedcounsel informed the County Court that she felt uncomfortable representing the defendant atsentencing. In addition, assigned counsel stated that she could not set forth any legal ground forthe defendant to withdraw his plea of guilty. Under the circumstances of this case, the defendant'sright to counsel was adversely affected when his attorney took a position adverse to him (see People v Fully, 90 AD3d 1071[2011]; People v Vega, 88 AD3d1022 [2011]; People v Dixon,63 AD3d 957 [2009]). The County Court should have assigned a different attorney torepresent the defendant before it determined the defendant's motion to withdraw his plea of guilty(see People v Vega, 88 AD3d at 1022-1023; People v Dixon, 63 AD3d at 957).Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearingon 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. We hold the appealin abeyance pending receipt of the County Court's report. We express no opinion as to the meritsof the defendant's motion, and we decide no other issues at this time. Rivera, J.P., Dillon,Angiolillo and Leventhal, JJ., concur.