| People v McCray |
| 2013 NY Slip Op 03876 [106 AD3d 1374] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony McCray, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Spain, J. Appeal from a judgment of the County Court of Ulster County (WilliamsJr., J.), rendered October 25, 2010, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
Defendant, pursuant to a negotiated plea agreement, pleaded guilty to burglary in thesecond degree in full satisfaction of a three-count indictment. He was to be sentenced toa prison term of six years to be followed by five years of postrelease supervision andassessed certain fees and restitution in the amount of $6,324.56. At sentencing, defendantmoved pro se to withdraw his guilty plea, alleging, among other things, that he had beenimproperly arrested and that his statement should have been suppressed as the product ofcoercion. Upon questioning by County Court, defense counsel responded that she wasnot making an application on behalf of her client to withdraw his guilty plea. Whenasked specifically by the court whether there was "any legal basis" for defendant's pro semotion, counsel answered, "Not that I can see." Thereafter, the court denied defendant'smotion to withdraw his plea and sentenced defendant to the agreed-upon sentence.Defendant now appeals.
Under established principles, defense counsel has no duty to support a pro se motionthat he or she has determined to be without merit, and failing to support such a motion"does not constitute a position adverse to the client" (People v Hutchinson, 57 AD3d 1013, 1015 [2008], lvdenied 12 NY3d 817 [2009]). Here, after properly informing County Court that shewould not be [*2]making the motion on behalf ofdefendant, defense counsel responded to the court's substantive inquiry that she found no"legal basis" for his motion. Indeed, in denying defendant's request for new counsel orfor more time to make the motion, the court reiterated that defense counsel "in herknowledge and understanding of this case [stated] that there's no legal basis to withdrawyour plea of guilty." "[O]nce counsel took a position adverse to . . .defendant, the court should not have proceeded to determine the motion without firstassigning . . . defendant new counsel" (People v Santana, 156AD2d 736, 737 [1989]; seePeople v Wolf, 88 AD3d 1266, 1268 [2011], lv denied 18 NY3d 863[2011]; People v Kirkland,68 AD3d 1794, 1795 [2009]; People v Hunter, 35 AD3d 1228, 1228 [2006]; Peoplev Coleman, 294 AD2d 843, 843-844 [2002]; cf. People v Hutchinson, 57AD3d at 1015 [counsel made no statements on the record disputing the defendant's prose contentions]; People vMilazo, 33 AD3d 1060, 1061 [2006], lv denied 8 NY3d 883 [2007]).While apparently inadvertent, counsel's remark in response to the court's improperinquiry regarding the merits of defendant's pro se motion "affirmatively underminedarguments [her] client wished the court to review" (People v Vasquez, 70 NY2d1, 4 [1987]), "thereby depriving defendant of effective assistance of counsel" (Peoplev Lewis, 286 AD2d 934, 935 [2001]). Thus, the matter must be remitted for a denovo determination on defendant's motion, for which he must be represented by newcounsel (see People v Santana, 156 AD2d at 737).
The parties' remaining contentions have been rendered academic by our decision.
Stein, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of UlsterCounty for assignment of new counsel and a reconsideration of defendant's motion towithdraw his guilty plea; and, as so modified, affirmed.