| People v Freire |
| 2018 NY Slip Op 00564 [157 AD3d 963] |
| January 31, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Howard Freire, Appellant. |
Paul Skip Laisure, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (JohnLatella, J.), rendered March 3, 2014, convicting him of robbery in the first degree, robbery in thesecond degree (two counts), attempted robbery in the second degree, assault in the second degree(two counts), criminal possession of a weapon in the fourth degree, criminal possession of stolenproperty in the fifth degree, and menacing in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, for furtherproceedings on the defendant's motion to set aside the verdict pursuant to CPL 330.30, uponwhich motion the defendant's counsel on this appeal shall represent him, and thereafter a reportto this Court limited to the Supreme Court's findings with respect to the motion and whether thedefendant has established his entitlement to the relief sought in his CPL 330.30 motion. In theinterim, the appeal shall be held in abeyance pending receipt of the Supreme Court's report,which shall be filed with all convenient speed.
The defendant was convicted, upon a jury verdict, of robbery in the first degree and otheroffenses. Prior to sentencing, the defendant moved, pro se, to set aside the verdict pursuant toCPL 330.30 on the ground of ineffective assistance of counsel. At the sentencing hearing,defense counsel stated that he had reviewed the motion and did not adopt it. He added that "Idon't think it's correct." The Supreme Court ruled that the defendant was not entitled to "hybridrepresentation," and declined to review the motion.
Defense counsel, by taking a position adverse to that of his client on the motion to set asidethe verdict pursuant to CPL 330.30, deprived the defendant of effective assistance of counsel (see People v Bernard, 92 AD3d952, 953 [2012]; People vGruttadauria, 40 AD3d 879, 880 [2007]). Accordingly, since the appellant has notaddressed the merits of the CPL 330.30 motion in his brief, but rather, requests remittitur to theSupreme Court, we remit the matter for further proceedings on the merits of the motion andthereafter a report to this Court limited to the Supreme Court's findings with respect to themotion and whether the defendant has established his entitlement to the relief sought in hismotion. We express no opinion as to the merits of the defendant's motion and we [*2]decide no other issues at this time. Hall, J.P., Austin, Sgroi andChristopher, JJ., concur.