| People v Illescas |
| 2015 NY Slip Op 02138 [126 AD3d 915] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Silvio R. Illescas, Appellant. |
Evelyn K. Isaac, Hastings-on-Hudson, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Adrienne M. Chapoiloe, LaurieSapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered February 25, 2014, convicting him of predatory sexual assault(two counts), rape in the first degree, and assault in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the matter is remitted to the County Court, Westchester 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 County Court's report. TheCounty Court, Westchester County, shall file its report with all convenient speed.
At sentencing, the defendant, in effect, moved to withdraw his plea of guilty. Thedefendant's right to counsel was adversely affected when his attorney took a positionadverse to him with respect to the motion at sentencing (see People v Mitchell, 21NY3d 964, 967 [2013]; People v Duart, 113 AD3d 788, 789 [2014]; People v Vega, 88 AD3d1022, 1022 [2011]). The County Court should have assigned a different attorney torepresent the defendant before it determined the defendant's motion to withdraw his pleaof guilty (see People v Duart, 113 AD3d at 789; People v Vega, 88 AD3dat 1022-1023). Accordingly, we remit the matter to the County Court, WestchesterCounty, for a hearing on the defendant's motion to withdraw his plea of guilty, for whichthe defendant shall be appointed new counsel, and for a new determination of the motionthereafter. The appeal will be held in abeyance pending receipt of the County Court'sreport. We express no opinion as to the merits of the defendant's motion and we decideno other issues at this time. Rivera, J.P., Hall, Roman, Cohen and Barros, JJ.,concur.