| People v Armstead |
| 2015 NY Slip Op 01956 [126 AD3d 805] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony D. Armstead, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered September 17, 2012, convicting him of criminal possession of acontrolled substance in the seventh degree, upon his plea of guilty, and imposingsentence.
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 criminalpossession of a controlled substance in the seventh degree, the defendant moved towithdraw his plea of guilty to that charge on the ground that his plea was not knowingly,intelligently, and voluntarily made. At sentencing, assigned counsel stated that thedefendant's plea was validly entered, and denied certain factual allegations raised by thedefendant.
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 Barr, 116 AD3d1061, 1062 [2014]; Peoplev Duart, 113 AD3d 788, 789 [2014]; People v Graves, 95 AD3d 1034, 1034-1035 [2012]; People v Vega, 88 AD3d1022, 1022-1023 [2011]; People v Dixon, 63 AD3d 957, 957 [2009]). The SupremeCourt should have assigned a different attorney to represent the defendant before itdetermined the motion (see People v Barr, 116 AD3d at 1062; People vDuart, 113 AD3d at 789; People v Graves, 95 AD3d at 1034-1035;People v Vega, 88 AD3d at 1022-1023; People v Dixon, 63 AD3d at957). Accordingly, the matter must be remitted to the Supreme Court, Queens County,for a hearing on the defendant's motion to withdraw his plea of guilty, for which thedefendant shall be appointed new counsel, and for a new determination of the motionthereafter. The appeal will be held in abeyance pending receipt of the Supreme Court'sreport. We express no opinion as to the merits of the defendant's motion, and we decideno other issues at this time. Mastro, J.P., Dickerson, Cohen and LaSalle, JJ., concur.