| People v Russ |
| 2014 NY Slip Op 04084 [118 AD3d 1039] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRondy Russ, Also Known as Ski, Appellant. |
Barrett D. Mack, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedJune 19, 2012 in Ulster County, convicting defendant upon his plea of guilty of the crimeof conspiracy in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to the crime ofconspiracy in the second degree stemming from the shooting death of Charles King Jr.Prior to sentencing, defendant, pro se, moved to withdraw his plea, claiming that he wasinnocent and had involuntarily entered a plea of guilty due to defense counsel'smisrepresentations and coercion. The matter was adjourned for defendant to obtain newcounsel. Thereafter, upon questioning by Supreme Court regarding the voluntariness ofdefendant's plea, his new counsel affirmatively stated that the plea allocution reflects thatdefendant's plea was voluntary. Supreme Court denied defendant's motion and sentencedhim as a second felony offender in accordance with the plea agreement. This appealensued.
We agree with defendant's contention that he received ineffective assistance ofcounsel inasmuch as his new counsel took a position adverse to his with regard to themotion to withdraw his plea. "While defense counsel is not required to support apro se motion to withdraw a guilty [*2]plea, counsel 'maynot take a position . . . that is adverse to the defendant' " (People v Zaorski, 111 AD3d1054, 1054 [2013] [emphasis added and citation omitted], quoting People v Mitchell, 21 NY3d964, 967 [2013]). Although defendant was properly permitted to obtain a newattorney, he was denied the effective assistance of counsel when such counsel"affirmatively undermined arguments [that defendant] wished the court to review" (People v McCray, 106 AD3d1374, 1375 [2013] [internal quotation marks and citation omitted]; see People vBerroa, 99 NY2d 134, 139-140 [2002]; People v Zaorski, 111 AD3d at1055). Accordingly, the matter must be remitted for reconsideration of defendant'smotion, for which he must be represented by new counsel.
In light of this determination, we need not address defendant's remainingcontentions.
Lahtinen, McCarthy, Garry and Devine, JJ., concur. Ordered the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Ulster County for assignment of new counsel and reconsideration of defendant'smotion to withdraw his guilty plea; and, as so modified, affirmed.