| People v Zaorski |
| 2013 NY Slip Op 07765 [111 AD3d 1054] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vChristopher Zaorski, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J.P. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 23, 2010, convicting defendant upon his plea of guilty of thecrimes of burglary in the first degree and assault in the second degree.
Defendant pleaded guilty to burglary in the first degree and assault in the seconddegree in satisfaction of a five-count indictment with the understanding that he would besentenced to an aggregate prison term of 15 years and five years of postreleasesupervision. At sentencing, defendant sought to withdraw his plea based on, among otherthings, his claim that defense counsel coerced him into accepting it. After an extendedcolloquy with defendant and his counsel, County Court denied the motion and sentenceddefendant pursuant to the agreement. Defendant now appeals.
We agree with defendant's contention that he should have been assigned new counselto pursue his motion to withdraw the guilty plea because his counsel was essentiallycalled as a witness against him. While defense counsel is not required to support a pro semotion to withdraw a guilty plea, counsel "may not take a position . . . thatis adverse to the defendant" (People v Mitchell, 21 NY3d 964, 967 [2013]; see People v McCray, 106AD3d 1374, 1375 [2013]). Doing so creates an actual conflict of interest thatrequires the trial court to assign a new attorney to represent the defendant on the motion(see People v Mitchell, 21 NY3d at 967).[*2]
Here, defendant claimed that defense counselcoerced him into entering the guilty plea by failing to communicate with him, telling himthat he did not want to represent him and that he had to take the offer "or that's it."Defendant claimed that he was unprepared for any pretrial proceedings based on the lackof communication and felt that he had to take the plea to "get away" from counsel andavoid having to go to trial with him. Defense counsel specifically refuted defendant'sassertions and, in response to County Court's questioning, provided detailed informationas to the discussions he had with defendant about the case and his options. In response,defendant claimed that counsel's statements were untruthful. Given that defense counseltook a position adverse to defendant's claim of coercion, County Court should haveassigned new counsel to pursue defendant's motion to withdraw his plea (see Peoplev Mitchell, 21 NY3d at 967; People v McCray, 106 AD3d at 1375; People v Williams, 35 AD3d1085, 1087 [2006]; compare People v Pimentel, 108 AD3d 861, 863 [2013],lv denied 21 NY3d 1076 [2013]; People v Hutchinson, 57 AD3d 1013, 1015 [2008], lvdenied 12 NY3d 817 [2009]). In light of our determination, defendant's remainingcontentions are academic.
Lahtinen, 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 reconsideration of defendant's motion towithdraw his guilty plea; and, as so modified, affirmed.