| People v Howell |
| 2017 NY Slip Op 00485 [146 AD3d 981] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Howell, Appellant. |
Michael A. Fiechter, Bellmore, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and JaredChester of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Gugerty, J.), rendered October 22, 2014, as amended November 3, 2014, convicting himof assault in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Nassau 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 tothe Supreme Court's findings with respect to the motion and whether the defendantestablished his entitlement to the withdrawal of his plea, and the appeal is held inabeyance pending receipt of the Supreme Court's report, which shall be filed with allconvenient speed.
At sentencing, before the defendant was given an opportunity to present his pro semotion to withdraw his plea of guilty, defense counsel stated that he did not believe thatthere was any basis at that time for the defendant to withdraw his plea, and thus, neitherhe nor the defendant filed a motion. The defendant's right to counsel was adverselyaffected when his attorney took a position adverse to his (see People v Mitchell, 21NY3d 964, 967 [2013]; People v King, 129 AD3d 992, 993 [2015]; People v Armstead, 126 AD3d805, 806 [2015]; People vDuart, 113 AD3d 788, 789 [2014]; People v Graves, 95 AD3d 1034, 1035 [2012]; People v Fully, 90 AD3d1071 [2011]). The Supreme 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 King, 129 AD3d at 993; People v Armstead, 126AD3d at 806; People vBarr, 116 AD3d 1061, 1062 [2014]). Accordingly, the matter must be remittedto the Supreme Court, Nassau County, for further proceedings on the defendant's motionto withdraw his plea of guilty, for which the defendant should be appointed new counsel,and thereafter a report to this Court on the motion and whether the defendant establishedhis entitlement to withdrawal of the plea. We hold the appeal in abeyance pending receiptof the Supreme Court's report. We express no opinion as to the merits of the defendant'smotion, and we decide no other issues at this time. Dillon, J.P., Hall, Hinds-Radix andBrathwaite Nelson, JJ., concur.