| People v King |
| 2015 NY Slip Op 05209 [129 AD3d 992] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher King, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Adrienne M. Chapoulie andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered November 4, 2013, convicting him of burglary in the seconddegree, upon his plea of guilty, 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, whichshall be filed with all convenient speed.
At sentencing, before the defendant was given an opportunity to present his pro semotion to withdraw his plea of guilty, defense counsel made remarks in response to theprosecutor's statements that the defendant was not entitled to withdraw his plea. Defensecounsel was aware of the substance of the claims being advanced by the defendant, andexpressed his opinion that the claims being advanced by the defendant did not provide alegal ground for the withdrawal of his plea. Defense counsel then stated that there was noreason why sentencing shouldn't occur that day.
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 Armstead, 126 AD3d805, 806 [2015]; People vGraves, 95 AD3d 1034, 1035 [2012]; People v Fully, 90 AD3d 1071 [2011]). The County Courtshould have assigned a different attorney to represent the defendant before it determinedthe defendant's motion to withdraw his plea of guilty (see People v Armstead,126 AD3d at 806; People vBarr, 116 AD3d 1061, 1062 [2014]; People v Duart, 113 AD3d 788, 789 [2014]). Accordingly,the matter must be remitted to the County Court, Westchester County, for a hearing onthe defendant'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. We holdthe appeal in abeyance pending receipt of the County Court's report. We express noopinion as to the merits of the defendant's motion, and we decide no other issues at thistime. Dillon, J.P., Leventhal, Roman, Sgroi and Hinds-Radix, JJ., concur.