| People v Falls |
| 2018 NY Slip Op 06110 [164 AD3d 1361] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raiquan Falls, Appellant. |
Thomas R.Villecco, Jericho, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Robert H.Freehill, J.), rendered May 31, 2016, convicting him of tampering with physical evidence, uponhis plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the County Court, Orange 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 County Court'sfindings with respect to the motion and whether the defendant established his entitlement to thewithdrawal of his plea, and the appeal is held in abeyance pending receipt of the County Court'sreport, which shall be filed with all convenient speed.
On April 5, 2016, the defendant pleaded guilty to tampering with physical evidence.Thereafter, he moved pro se to withdraw his plea of guilty. When the matter came on forsentencing, the defendant advised the County Court that he wanted to withdraw his plea. Hisattorney stated that there was no basis for the defendant to withdraw his plea, and the courtproceeded to impose sentence. The defendant's right to counsel was adversely affected when hisattorney took a position adverse to that of the defendant. The court should have appointed newcounsel to represent the defendant with respect to the motion to withdraw his plea of guilty (see People v Caputo, 163 AD3d983 [2018]; People v Howell,146 AD3d 981 [2017]; People vLoaiza, 142 AD3d 564 [2016]; People v Hayes, 140 AD3d 1186 [2016]; People v Elting, 2 AD3d 455[2003]).
Accordingly, we remit the matter to the County Court, Orange County, for furtherproceedings on the defendant's motion to withdraw his plea of guilty, for which the defendantshould be appointed new counsel, and thereafter a report to this Court on the motion and whetherthe defendant established his entitlement to withdrawal of the plea. We hold the appeal inabeyance pending receipt of the County Court's report. We express no opinion as to the merits ofthe defendant's motion. Chambers, J.P., Austin, Cohen and Duffy, JJ., concur.