| People v Prater |
| 2015 NY Slip Op 02806 [127 AD3d 1249] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLamar Prater, Appellant. |
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered May 6, 2013, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary inthe second degree and waived his right to appeal. Defendant thereafter moved pro se towithdraw his plea, asserting, among other things, that counsel had pressured him intoaccepting the plea and that it was involuntary. After reviewing the plea minutes andhearing from defense counsel, County Court denied the motion and sentenced defendant,in accordance with the plea agreement, to five years in prison to be followed by fiveyears of postrelease supervision. Defendant appeals.
In our view, the judgment must be modified. "It is well settled that a defendant has aright to the effective assistance of counsel on his or her motion to withdraw a guilty plea"(People v Mitchell, 21NY3d 964, 966 [2013] [citations omitted]). While defense counsel need not supporta pro se motion to withdraw a plea, counsel may not become a witness against his or herclient (see People vHutchinson, 57 AD3d 1013, 1014-1015 [2008], lv denied 12 NY3d 817[2009]), make remarks that "affirmatively undermine" a defendant's arguments (see People v Pimentel, 108AD3d 861, 863 [2013], lv denied 21 NY3d 1076 [2013]), or otherwise "takea position . . . that is adverse to the defendant" (People v Russ, 118 AD3d1039, 1040 [2014] [internal quotation marks, emphasis and citations omitted]. Here,when asked to respond to defendant's pro se motion, counsel advised that, in his opinion,"[County] Court thoroughly explained everything to [*2]him . . . , [defendant had] no questionsconcerning the plea" and that there was no way that he could see that defendant "pleadedwithout knowing what he was pleading to." In our view, because counsel's opinion wasadverse to defendant, a conflict of interest arose and County Court should have assigneda new attorney to represent defendant (see People v Mitchell, 21 NY3d at 967;People v Russ, 118 AD3d at 1040; People v McCray, 106 AD3d 1374, 1375 [2013]).
In light of this determination, we need not address defendant's remainingcontentions.
Peters, P.J., Garry and Rose, JJ., concur. Ordered the judgment is modified, on thelaw, by vacating the sentence imposed; matter remitted to the County Court ofSchenectady County for assignment of new counsel and reconsideration of defendant'smotion to withdraw his plea; and, as so modified, affirmed.