People v. Illescas

126 A.D.3d 915, 2 N.Y.S.3d 916, 2015 NY Slip Op 02138, 2015 N.Y. App. Div. LEXIS 2116

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered February 25, 2014, convicting him of predatory sexual assault (two counts), rape in the first degree, and assault in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the County Court, Westchester County, for a 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, and the appeal is held in abeyance pending receipt of the County Court’s report. The County Court, Westchester County, shall file its report with all convenient speed.

At sentencing, the defendant, in effect, moved to withdraw his plea of guilty. The defendant’s right to counsel was adversely affected when his attorney took a position adverse to him with respect to the motion at sentencing (see People v Mitchell, 21 NY3d 964, 967 [2013]; People v Duart, 113 AD3d 788, 789 [2014]; People v Vega, 88 AD3d 1022, 1022 [2011]). The County Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion to withdraw his plea of guilty (see People v Duart, 113 AD3d at 789; People v Vega, 88 AD3d at 1022-1023). Accordingly, we remit the matter to the County Court, Westchester County, for a 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. The appeal will be held in abeyance pending receipt of the County 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.

Rivera, J.P., Hall, Roman, Cohen and Barros, JJ., concur.