People v Tzintzunfrias

2017 NY Slip Op 03202 [149 AD3d 1112]

April 26, 2017

Appellate Division, Second Department

As corrected through Wednesday, May 31, 2017

[*1]

The People of the State of New York,Respondent, v Jose Antonio Tzintzunfrias, Appellant.

Seymour W. James, Jr., New York, NY (Adrienne M. Gantt of counsel; Jacob Hansen on thebrief), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel),for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rienzi,J.), rendered March 20, 2012, convicting him of course of sexual conduct against a child in thefirst degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Richmond County, for furtherproceedings on the defendant's motion to withdraw his plea of guilty, for which the defendantshall be appointed new counsel, and thereafter a report to this Court limited to the SupremeCourt's findings with respect to the motion and whether the defendant established his entitlementto the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the SupremeCourt's report, which shall be filed with all convenient speed.

The defendant pleaded guilty to course of sexual conduct against a child in the first degree,with respect to sexual acts committed against his stepdaughter over a period of21/2 years. On the date scheduled for imposition of sentence, defense counsel toldthe Supreme Court that the defendant insisted that he was innocent and had not had adequatelegal representation. The court granted defense counsel's application to be relieved, and assignednew counsel to represent the defendant. New counsel subsequently filed a motion seekingwithdrawal of the defendant's plea, but stated in his affirmation in support of the motion that theplea allocution was "comprehensive," and that the record indicated that the defendant pleadedguilty "voluntarily and knowingly" and was satisfied with his prior attorney. The court denied themotion without conducting a hearing and sentenced the defendant in accord with the pleaagreement.

On appeal, the defendant contends that he received ineffective assistance of counsel when hisnew counsel took a position adverse to his motion to withdraw the plea. The People agree thatcounsel was deficient and that the defendant was denied meaningful representation under theNew York State Constitution, and they agree that the case should be remitted for furtherproceedings on the defendant's motion to withdraw his plea, with assignment of a new attorney torepresent the defendant.

[*2] Under thecircumstances, we deem it appropriate to remit the matter to the Supreme Court, RichmondCounty, for further proceedings on the defendant's motion to withdraw his plea of guilty, forwhich the defendant should be appointed new counsel (see People v Mitchell, 21 NY3d 964, 967 [2013]; People v Prater, 127 AD3d 1249,1250 [2015]; People v Russ, 118AD3d 1039, 1040 [2014]), and, thereafter, a report to this Court on the motion and whetherthe defendant established his entitlement to withdrawal of the plea (see People v Howell, 146 AD3d981, 982 [2017]). We hold the appeal in abeyance pending receipt of the court's report. Weexpress no opinion as to the merits of the defendant's motion, and we decide no other issue at thistime. Balkin, J.P., Austin, LaSalle and Brathwaite Nelson, JJ., concur.