| People v Loaiza |
| 2016 NY Slip Op 05766 [142 AD3d 564] |
| August 10, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aldeberto Loaiza, Appellant. |
Lynn W. L. Fahey, New York, NY (Patricia Pazner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, William H. Branigan, and Anish Patel of counsel; Kristen Lasak on thebrief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County,dated January 7, 2004 (Wong, J.), convicting him of criminal possession of a controlledsubstance in the fourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens 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 Supreme Court's report, which shall be filed with all convenient speed.
At sentencing, the defendant moved to withdraw his plea of guilty. The defendant'sright to counsel was adversely affected when his attorney took a position adverse to his atsentencing (see People vMitchell, 21 NY3d 964, 967 [2013]; People v Illescas, 126 AD3d 915 [2015]; People v Armstead, 126 AD3d805, 806 [2015]; People vVega, 88 AD3d 1022, 1022 [2011]; People v Elting, 2 AD3d 455 [2003]). The Supreme 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 Illescas, 126 AD3d 915 [2015]; People vArmstead, 126 AD3d at 806; People v Vega, 88 AD3d 1022 [2011]; People v Elting, 2 AD3d455 [2003]). Accordingly, we remit the matter to the Supreme Court, QueensCounty, for further proceedings on the defendant's motion to withdraw his plea of guilty,for which the defendant should be appointed new counsel, and thereafter a report to thisCourt on the motion and whether the defendant established his entitlement to withdrawalof the plea. 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. Chambers, J.P., Dickerson, Duffy and LaSalle, JJ.,concur.