| People v Hayes |
| 2016 NY Slip Op 05168 [140 AD3d 1186] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ralphie Hayes, Appellant. |
Warren S. Hecht, Forest Hills, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered January 18, 2013, convicting him of attempted criminalpossession of a weapon in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the matter is remitted to the County Court, Orange County, for furtherproceedings on the defendant's motion to withdraw his plea of guilty, for which thedefendant shall be appointed new counsel, and thereafter a report to this Court limited toits findings with respect to the motion and whether the defendant established hisentitlement to the withdrawal of his plea, and the appeal is held in abeyance pendingreceipt of the County Court's report, which shall be filed with all convenient speed.
Prior to sentencing, the defendant moved to withdraw his plea of guilty. As thePeople correctly concede, the defendant's right to counsel was adversely affected whenhis attorney took a position adverse to him with respect to that motion (see People v Mitchell, 21NY3d 964, 966-967 [2013]; People v Illescas, 126 AD3d 915, 916 [2015]; People v Bedoya, 53 AD3d621, 621 [2008]; People vElting, 2 AD3d 455, 456 [2003]). The County Court should have assigned adifferent attorney to represent the defendant before it determined the defendant's motion(see People v Duart, 113AD3d 788, 789 [2014]; People v Santana, 156 AD2d 736, 737 [1989]).Accordingly, we remit the matter to the County Court, Orange County, for furtherproceedings on the defendant's motion to withdraw his plea of guilty, for which thedefendant should be appointed new counsel, and thereafter a report to this Court on themotion and whether the defendant established his entitlement to withdrawal of the plea.The appeal will be held in abeyance pending receipt of the County Court's report. Weexpress no opinion as to the merits of the defendant's motion, and we decide no otherissues at this time. Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.