People v. Ferguson

140 A.D.3d 976, 32 N.Y.S.3d 516

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Quinn, J.), rendered April 13, 2015, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Nassau County, for further proceedings on the defendant’s mo tion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court limited to its findings with respect to the motion and whether the defendant established his entitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the Supreme Court’s report, which shall be filed with all convenient speed.

At sentencing, defense counsel informed the Supreme Court that the defendant wanted to withdraw his plea of guilty. Defense counsel stated, among other things, that he did not “believe there’s a basis to withdraw the plea.” As the People correctly concede, the defendant’s right to counsel was adversely affected when his attorney took a position adverse to his (see People v Mitchell, 21 NY3d 964, 967 [2013]; People v King, 129 AD3d 992, 993 [2015]; People v Illescas, 126 AD3d 915, 915-916 [2015]; People v Duart, 113 AD3d 788, 789 [2014]; People v Graves, 95 AD3d 1034, 1034-1035 [2012]; People v Fully, 90 AD3d 1071 [2011]). The Supreme Court should have assigned a different attorney to represent the defendant on the plea withdrawal motion (see People v Armstead, 126 AD3d 805, 806 [2015]; People v Barr, 116 AD3d 1061, 1062 [2014]; People v Vega, 88 AD3d 1022, 1022-1023 [2011]). Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant should be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of the plea. The appeal will be held in abeyance pending receipt of the Supreme Court’s report. We express no opinion as to the merits of the defendant’s motion, and we decide no other issues at this time.

Chambers, J.P., Austin, Roman and Duffy, JJ., concur.