| People v Caputo |
| 2018 NY Slip Op 05481 [163 AD3d 983] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Vincent Caputo, Appellant. |
Paul Skip Laisure, New York, NY (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (StephanieZaro, J.), rendered September 4, 2014, convicting him of criminal possession of a firearm, uponhis plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, for furtherproceedings on the defendant's application 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 application and whether the defendant established hisentitlement to the withdrawal of his plea of guilty, and the appeal is held in abeyance pendingreceipt of the Supreme Court's report, which shall be filed with all convenient speed.
The defendant pleaded guilty to criminal possession of a firearm. Upon being interviewed bythe Department of Probation prior to sentencing, the defendant asserted that he was innocent andplanned to withdraw his plea of guilty. At sentencing, the judge, after declaring that thedefendant would not be permitted to withdraw his plea, inquired into the claim of innocence.When defense counsel stated that the defendant wished to make an application to withdraw hisplea, the court indicated that it would not allow the defendant to make that application. The courtthen asked defense counsel whether, "other than he just changed his mind is there any legal basisfor him to take his plea back?" Counsel answered in the negative. The defendant was thereafterasked whether he wanted to say anything, and he began to explain the basis of his application towithdraw his plea, but he was cut off by defense counsel and the court. The defendant was thensentenced to a period of probation.
"The nature and extent of the fact-finding procedures prerequisite to the disposition of[motions to withdraw a plea of guilty] rest largely in the discretion of the Judge to whom themotion is made" (People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Manor, 27 NY3d1012, 1013 [2016]). While in "rare instance[s]" a defendant will be entitled to an evidentiaryhearing, often "a limited interrogation by the court will suffice" (People v Tinsley, 35NY2d at 927; see People v Manor, 27 NY3d at 1014), and when a motion "is patentlyinsufficient on its face, a court may simply deny the motion without making any inquiry" (People v Mitchell, 21 NY3d 964,967 [2013]). Nevertheless, "[t]he defendant should be afforded reasonable opportunity to presenthis contentions and the court should [*2]be enabled to make aninformed determination" (People v Tinsley, 35 NY2d at 927; see People v Ghingoree, 150 AD3d881 [2017]).
Moreover, "a defendant has a right to the effective assistance of counsel on his or her motionto withdraw a guilty plea" (People v Mitchell, 21 NY3d at 966). Counsel "takes aposition adverse to his client," depriving him or her of meaningful representation, "when statingthat the defendant's motion lacks merit" (People v Washington, 25 NY3d 1091, 1095 [2015]; see Peoplev Mitchell, 21 NY3d at 966).
Here, the defendant was not afforded a reasonable opportunity to present his contentionsregarding plea withdrawal and, consequently, the sentencing court was not able to make aninformed determination of that application (see People v Tinsley, 35 NY2d at 927; People v Ghingoree, 150 AD3d881 [2017]). Moreover, the defendant's right to counsel was adversely affected when hisattorney took a position adverse to his, and new counsel should have been assigned to representthe defendant before his application to withdraw his plea was determined (see People v Ghingoree, 150 AD3d881 [2017]; People vTzintzunfrias, 149 AD3d 1112, 1113 [2017]; People v Howell, 146 AD3d 981, 982 [2017]; People v Ferguson, 140 AD3d976, 977 [2016]; People vKing, 129 AD3d 992, 993 [2015]; People v Duart, 113 AD3d 788, 789 [2014]).
Accordingly, the matter must be remitted to the Supreme Court, Queens County, for furtherproceedings on the defendant's application to withdraw his plea of guilty, for which the defendantshould be appointed new counsel, and thereafter a report to this Court on the application andwhether the defendant established his entitlement to withdrawal of the plea. We hold the appealin abeyance pending receipt of the Supreme Court's report. We express no opinion as to themerits of the defendant's application. Dillon, J.P., Sgroi, Miller and Brathwaite Nelson, JJ.,concur.