People v. Davis

232 A.D.2d 652, 649 N.Y.S.2d 161, 1996 N.Y. App. Div. LEXIS 11302

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered November 14,1994, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Richmond County, to hear and report on the defendant’s motion to withdraw his plea of guilty, on which motion the defendant’s appellate counsel shall represent him, and the appeal is held in abeyance in the interim. The Supreme Court, Richmond County, is to file its report with all convenient speed.

At his sentencing hearing, the defendant made an application to withdraw his plea of guilty on the ground that his assigned counsel coerced him into accepting the plea. The defendant’s assigned counsel denied that he had coerced the defendant and enumerated the various positive things he had done for the defendant.

Under these circumstances, the defendant’s right to counsel was adversely affected since his attorney became a witness against him (see, People v Jones, 223 AD2d 559; People v Smith, 225 AD2d 714; People v Humbert, 219 AD2d 674; People v Santana, 156 AD2d 736, 737). The court should not have proceeded to rule upon the motion without first assigning the defendant new counsel (see, People v Jones, supra; People v Smith, supra; People v Santana, supra). Accordingly, the matter is remitted for a new determination at which the defendant shall be represented by appellate counsel. Thompson, J. P., Pizzuto, Goldstein and Luciano, JJ., concur.