People v. Fully

90 A.D.3d 1071, 934 N.Y.2d 832, 2011 NY Slip Op 9668, 934 N.Y.S.2d 832, 2011 N.Y. App. Div. LEXIS 9472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

Prior to sentencing, the defendant moved to withdraw his plea of guilty. The Supreme Court assigned a new attorney to represent the defendant at a hearing on the defendant’s motion, but, at the hearing, the new attorney stated on three occasions that it was his “professional” or “knowledgeable” opinion that the defendant’s motion was without merit. As the People correctly concede, the defendant’s right to counsel was adversely affected when his new attorney took a position adverse to the defendant’s with respect to the defendant’s motion (see1 People v Vega, 88 AD3d 1022 [2011]; People v Dixon, 63 AD3d 957 [2009]; People v Bedoya, 53 AD3d 621 [2008]). Accordingly, we must remit the matter to the Supreme Court, Richmond County, for a new hearing on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. We hold the appeal 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. Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.