| People v Barr |
| 2014 NY Slip Op 02949 [116 AD3d 1061] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Leo Barr, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Christine DiSalvo, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered November 26, 2012, convicting him of assault in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, for ahearing on the defendant's motion to withdraw his plea of guilty, for which the defendantshall be appointed new counsel, and for a new determination of the motion thereafter,and the appeal is held in abeyance pending receipt of the Supreme Court's report, whichshall be filed with all convenient speed.
Prior to the imposition of sentence upon the defendant's conviction of assault in thesecond degree, the defendant moved to withdraw his plea of guilty to that charge on theground that his assigned counsel had forced him to take the plea by telling him that hewould receive a much greater sentence if he rejected the plea. At the sentencing hearing,assigned counsel denied the accusation, which effectively made her a witness against herclient. She further expressed her opinion that the defendant's plea of guilty had beenvalidly entered.
The defendant's right to counsel was adversely affected when his attorney took aposition adverse to his (seePeople v Mitchell, 21 NY3d 964, 967 [2013]; People v Duart, 113 AD3d788 [2014]; People vVega, 88 AD3d 1022, 1022-1023 [2011]). The Supreme Court should haveassigned a different attorney to represent the defendant before it determined the motion(see People v Duart, 113AD3d 788 [2014]; People v Vega, 88 AD3d at 1022-1023). Accordingly,the matter must be remitted to the Supreme Court, Queens County, for a hearing on thedefendant'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. The appealwill be held in abeyance pending receipt of the Supreme Court's report. We express noopinion as to the merits of the defendant's motion, and we decide no other issues at thistime. Mastro, J.P., Hall, Austin, Sgroi and Duffy, JJ., concur.