| People v Faulkner |
| 2019 NY Slip Op 00645 [168 AD3d 1317] |
| January 31, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Romeo Faulkner, Appellant. |
Robert Gregor, Lake George, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered October 8, 2014, convicting defendant upon his plea of guilty of the crime of rape in thethird degree (two counts).
In July 2014, defendant was charged by indictment with five counts of rape in the thirddegree, four counts of criminal sexual act in the third degree, one count of endangering thewelfare of a child and five counts of criminal contempt in the second degree. Pursuant to anegotiated plea agreement, defendant pleaded guilty to two counts of rape in the third degree infull satisfaction of the charges against him and waived his right to appeal in exchange for amaximum aggregate prison term of three years. Following repeated Parkeradmonishments, defendant was released and directed to turn himself in the following week;however, when he failed to do so, a bench warrant was issued and he was ultimately rearrested.At a subsequent appearance, defendant made an oral pro se motion to withdraw his guilty plea. Inresponse, defense counsel stated that he had advised defendant that there was no basis for themotion and that he believed defendant's plea had been knowingly and voluntarily entered. CountyCourt reserved decision on defendant's motion, as well as the question of whether defendantshould be assigned new counsel. Defendant appeared with the same counsel at the nextappearance, which, according to County Court, had been scheduled for a determination "as towhether or not to assign" defendant new counsel. However, County Court did not address thisquestion; rather, County Court denied defendant's pro se motion on the merits. Thereafter, inlight of defendant's rearrest prior to sentencing and several alleged violations of his releaseconditions, the People sought an enhanced sentence. With the assistance of the same counsel,defendant waived his right to an Outley hearing and consented to the court's imposition ofan enhanced, aggregate prison term of six years, in satisfaction of the two subject charges, as wellas any outstanding charges resulting from alleged violations of his release conditions, to befollowed by 10 years of postrelease supervision. Defendant appeals.
Defendant's sole contention on appeal is that defense counsel undermined his pro se motionto withdraw his guilty plea by taking a position adverse to his interests and, as a result of thisviolation of his right to the effective assistance of counsel, County Court should have assignednew counsel to represent him on his motion. The People agree, as do we. "It is well settled that adefendant has a right to the effective assistance of counsel on his or her motion to withdraw aguilty plea" (People v Mitchell, 21NY3d 964, 966 [2013] [citations omitted]; see People v Rozzell, 20 NY2d 712, 713[1967]). Although "defense counsel need not support a pro se motion to withdraw a plea, counselmay not become a witness against his or her client, make remarks that affirmatively undermine adefendant's arguments, or otherwise take a position that is adverse to the defendant" (People v Oliver, 158 AD3d 990,991 [2018] [internal quotation marks and citations omitted]; see People v McCray, 106 AD3d 1374, 1375 [2013]). "[C]ounseltakes a position adverse to his [or her] client when stating that the defendant's motion lacks merit,or that the defendant, who is challenging the voluntariness of his [or her] guilty plea, made aknowing plea that was in his [or her] best interest" (People v Washington, 25 NY3d 1091, 1095 [2015] [internalquotation marks, ellipsis, brackets and citations omitted]; see People v Deliser, 21 NY3d964, 966 [2013]). If counsel takes a position that is adverse to his or her client, a conflict ofinterest arises and the trial court must assign new counsel to represent the defendant on themotion (see People v Mitchell, 21 NY3d at 966; People v Tyler, 130 AD3d 1383, 1385 [2015]; People vMcCray, 106 AD3d at 1375).
Defense counsel's repeated assertions that there was no basis for defendant's motion and thathis plea had been entered knowingly and voluntarily created a conflict of interest between himand defendant, thereby giving rise to County Court's obligation to assign new counsel beforedeciding the motion (see People v Oliver, 158 AD3d at 991; People v Prater, 127 AD3d 1249,1250 [2015]; People v Russ, 118AD3d 1039, 1040 [2014]). Accordingly, we vacate the sentence and remit the matter forassignment of new counsel and reconsideration of defendant's motion.
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court ofSchenectady County for the assignment of new counsel and reconsideration of defendant'smotion to withdraw his plea; and, as so modified, affirmed.