People v. Rivera-Santana

2023 NY Slip Op 05101

Opinion

People v Rivera-Santana (2023 NY Slip Op 05101)

People v Rivera-Santana

2023 NY Slip Op 05101

Decided on October 10, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 10, 2023
Before: Manzanet-Daniels, J.P., Gesmer, González, Kennedy, O'Neill Levy, JJ.

Ind. No. 1250/18 Appeal No. 733 Case No. 2019-04016

[*1]The People of the State of New York, Respondent,

v

Manuel Rivera-Santana, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Julianna Sousou of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Barry Warhit, J.), rendered June 12, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 5½ years, held in abeyance, and the matter remitted for further proceedings on defendant's motion to withdraw his plea, with new counsel assigned.

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting, among other things, deficiencies in defense counsel's performance with respect to the plea. The court assigned defendant new counsel, and the People opposed defendant's motion. At the outset of the sentencing hearing, the court asked counsel if he was seeking an adjournment to supplement defendant's pro se motion, and counsel responded: "No, I am not, and I am not adopting it because I read the People's [opposition] and reviewed the case law on this issue and it really doesn't seem to be worthy of asking for my client to take his plea back." Under the circumstances, counsel took a position adverse to defendant, requiring assignment of new counsel on the motion (see People v Washington, 25 NY3d 1091, 1095 [2015]; People v Mitchell, 21 NY3d 964, 967 [2013]; People v Colson, 160 AD3d 579 [1st Dept 2018]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 10, 2023