Opinion
September 18, 1995
Appeal from the County Court, Nassau County (Boklan, J.).
Ordered that the matter is remitted to the County Court, Nassau 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 County Court, Nassau County, shall file its report with all convenient speed.
In response to the defendant's application for permission to withdraw his plea of guilty, the defense counsel stressed what he had done on the defendant's behalf and specifically controverted the defendant's contention that he had pressured him into pleading guilty. Under these circumstances, the "defendant's right to counsel was adversely affected when his attorney * * * became a witness against him", and the court "should not have proceeded to determine the motion without first assigning the defendant new counsel" (People v Santana, 156 A.D.2d 736, 737; see also, People v Rozzell, 20 N.Y.2d 712; People v Wilson, 91 A.D.2d 1052). Accordingly, the matter is remitted for a new determination at which the defendant shall be represented by appellate counsel. At this point, we express no opinion as to the merits of the defendant's application. Mangano, P.J., Joy, Krausman and Florio, JJ., concur.