| People v Oliver |
| 2018 NY Slip Op 01221 [158 AD3d 990] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Michael L.Oliver, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (Christopher M. Stanyon of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.),rendered December 8, 2015, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to sexual abuse in the firstdegree. Prior to sentencing, defense counsel informed County Court that, contrary to her advice,defendant wished to move to withdraw his plea. Defendant informed County Court that hewanted to withdraw his plea because the plea agreement was unfair, he had not received copiesof the victim's medical evaluation and he was innocent. Following an inquiry, County Courtconcluded that defendant had not established sufficient grounds to withdraw his plea andthereafter sentenced him to five years in prison to be followed by 10 years of postreleasesupervision. Defendant now appeals.
Defendant initially contends that County Court erred in not assigning him a new attorney torepresent him in his motion to withdraw his plea. We agree. "It is well settled that a defendanthas a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea"(People v Mitchell, 21 NY3d964, 966 [2013] [citations omitted]; accord People v Prater, 127 AD3d 1249, 1250 [2015]). "Whiledefense counsel need not support a pro se motion to withdraw a plea, counsel may not become awitness against his or her client, make remarks that affirmatively undermine a defendant'sarguments, or otherwise take a position that is adverse to the defendant" (People v Prater,127 AD3d at 1250 [internal quotation marks, ellipsis and [*2]citations omitted]; see People v McCray, 106 AD3d 1374, 1375 [2013]).
At sentencing, defense counsel appropriately advised County Court that, although she hadcounseled defendant regarding the potential consequences of withdrawing his guilty plea, anddespite her legal advice to the contrary, defendant nevertheless wished to proceed with such amotion. Defendant thereafter set forth various reasons as to why he believed he was entitled tothe requested relief. In response to County Court's subsequent inquiries, however, defensecounsel made comments that, in our view, could be construed as undermining the very argumentsthat defendant had raised in support of his motion. Accordingly, once defense counsel took aposition that was adverse to defendant, County Court should have assigned a new attorney torepresent him on his motion to withdraw his plea (see People v Mitchell, 21 NY3d at967; People v Prater, 127 AD3d at 1250; People v Russ, 118 AD3d 1039, 1040 [2014]; People vMcCray, 106 AD3d at 1375). In light of this determination, we need not address defendant'sremaining contentions.
Garry, P.J., McCarthy, Lynch and Pritzker, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofFulton County for the assignment of new counsel and reconsideration of defendant's motion towithdraw his plea; and, as so modified, affirmed.