People v. Burton

251 A.D.2d 1020, 674 N.Y.S.2d 560, 1998 N.Y. App. Div. LEXIS 7050

Opinion

—Case held, decision reserved and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: Defendant pleaded guilty to criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]) and attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [4]). Prior to sentencing, defendant made a pro se motion to withdraw his plea on the grounds that he was under the influence of marihuana during the plea proceeding and that he had been coerced by his attorney to plead guilty. At sentencing, defense counsel, who had not represented defendant during entry of the plea, moved to withdraw from representation. He stated that, despite the favorable plea bargain, defendant “persists” in moving to withdraw the plea; that he had informed defendant of the “folly” of his persistence; and that he could not be a party to it. Defendant was denied effective assistance of counsel when defense counsel took a position adverse to that of defendant, and County Court should not have determined the motion to withdraw the plea without first assigning a different attorney to represent defendant (see, People v Chrysler, 233 AD2d 928; People v Singletary, 233 AD2d 849; People v Kellar, 213 AD2d 1063; People v Welsh, 207 AD2d 1025). Thus, we reserve decision and remit the matter to Erie County Court for the assignment of counsel and a de novo determination of the motion to withdraw the guilty plea. (Appeal from Judgment of Erie County Court, McCarthy, J. — Criminal Possession Controlled Substance, 2nd Degree.) Present — Denman, P. J., Green, Pigott, Jr., Balio and Boehm, JJ.