People v. Spearman

210 A.D.2d 268, 619 N.Y.S.2d 967, 1994 N.Y. App. Div. LEXIS 12317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered December 2, 1992, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report upon the defendant’s motion to withdraw his plea, on which motion the defendant’s appellate counsel shall represent him, and the appeal is held in abeyance in the interim; the Supreme Court, Queens County, is to file its report with all convenient speed.

The defendant moved, prior to sentencing, to withdraw his plea of guilty on the ground, inter alia, that he was coerced by his counsel into taking the plea. The record indicates that, at sentencing, the defendant’s counsel took a position adverse to his client. Under these circumstances, the court should not have proceeded to determine the motion without first assigning the defendant new counsel (see, People v Boyd, 22 NY2d 707; People v Rozzell, 20 NY2d 712; People v Santana, 156 AD2d 736). Thus, the matter is remitted to the Supreme Court to hear and report on the motion. At the hearing before the Supreme Court, the defendant shall be represented by appellate counsel. At this juncture, we express no opinion as to the substantive merit of the defendant’s motion. Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.