Opinion
November 24, 1997
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the defendant's motion to withdraw his plea of guilty, 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.
Initially, the defendant asserts that the Supreme Court erred in sentencing him as a violent predicate felon. However, the defendant waived this claim by failing to contest or controvert his status as a violent predicate felon when he had an opportunity to do so ( see, People v. Shriay, 240 A.D.2d 783; People v Hall, 233 A.D.2d 946; People v. Hamilton, 205 A.D.2d 706; People v. Khatib, 166 A.D.2d 668, 669).
However, prior to sentencing, the defendant moved 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 defense counsel took a position adverse to the defendant and, essentially, became a witness against the defendant. Under these circumstances, the court should have first assigned new counsel to the defendant before deciding the defendant's motion ( see, People v. Rozzell, 20 N.Y.2d 712; People v. Rodas, 238 A.D.2d 358; People v. Humbert, 219 A.D.2d 674). Thus, the matter is remitted to the Supreme Court to hear and report on the defendant's motion to withdraw his plea. At the hearing, 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.
Pizzuto, J. P., Santucci, Joy and Florio, JJ., concur.