People v. Rizzo

2017 NY Slip Op 918, 147 A.D.3d 439, 46 N.Y.S.3d 580

Opinion

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 20, 2015, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of IV2 to 3 years, unanimously modified, on the law, to remand for resentencing and for further proceedings on defendant’s plea withdrawal motion in accordance with this decision.

The court and defense counsel were under the mistaken impression that defendant was proceeding pro se, with an attorney acting only as a legal advisor, at the time defendant’s motion to withdraw his guilty plea was determined. Although defendant had represented himself at a suppression hearing, he had subsequently asked for the reinstatement of counsel, and he was represented by counsel when he pleaded guilty. The record does not reflect any subsequent request by defendant to return to pro se status. We have considered and rejected the People’s preservation argument regarding this right-to-counsel issue. Accordingly, we remand the matter for resentenc-ing, with the assignment of counsel and resubmission of defendant’s motion.

Concur — Tom, J.P., Renwick, Saxe, Feinman and Gesmer, JJ.