| People v Duart |
| 2014 NY Slip Op 00373 [113 AD3d 788] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Douglas Duart, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County(Kahn, J.), rendered April 1, 2009, convicting him of attempted use of a child in a sexualperformance under superior court information No. 553/09, upon his plea of guilty, andimposing sentence, (2) a judgment of the same court rendered January 25, 2011,convicting him of attempted use of a child in a sexual performance under superior courtinformation No. 2799/10, upon his plea of guilty, and imposing sentence, and (3) anamended judgment of the same court, also rendered January 25, 2011, revoking asentence of probation previously imposed by the same court upon a finding that heviolated a condition thereof, upon his admission, and imposing a sentence ofimprisonment upon his previous conviction of attempted use of a child in a sexualperformance under superior court information No. 553/09.
Ordered that the matter under superior court information No. 2799/10 is remitted tothe County Court, Suffolk County, for a hearing on that branch of the defendant's motionwhich was to withdraw his plea of guilty to attempted use of a child in a sexualperformance under superior court information No. 2799/10, for which the defendantshall be appointed new counsel, and for a new determination of that branch of the motionthereafter, and the appeals are held in abeyance pending receipt of the County Court'sreport, which shall be filed with all convenient speed.
Prior to the imposition of sentence for the defendant's conviction of attempted use ofa child in a sexual performance under superior court information No. 2799/10, thedefendant moved, inter alia, to withdraw his plea of guilty to that charge. Assignedcounsel expressed his opinion that the defendant should "maintain his plea" and informedthe court that he didn't "feel that [he] could represent [the defendant] at any furtherproceedings." The defendant's right to counsel was adversely affected when his attorneytook a position adverse to the defendant's with respect to that branch of the defendant'smotion which was to withdraw his plea of guilty to attempted use of a child in a sexualperformance (see People vMitchell, 21 NY3d 964, 967 [2013]; People v Graves, 95 AD3d 1034, 1035 [2012]; People v Fully, 90 AD3d1071 [2011]; People vVega, 88 AD3d 1022 [2011]). The County Court should have assigned adifferent attorney to represent the defendant before it determined that [*2]branch of the defendant's motion (see People vGraves, 95 AD3d at 1035; People v Vega, 88 AD3d at 1022-1023).Accordingly, the matter under superior court information No. 2799/10 must be remittedto the County Court, Suffolk County, for a hearing on that branch of the defendant'smotion which was to withdraw his plea of guilty under superior court information No.2799/10, for which the defendant shall be appointed new counsel, and for a newdetermination of that branch of the motion thereafter. The appeals will be held inabeyance pending receipt of the County Court's report. We express no opinion as to themerits of that branch of the defendant's motion, and we decide no other issues at thistime. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.