Opinion
2002-02624.
Decided March 29, 2004.
Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered February 20, 2002, convicting him of reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence.
Brian S. MacNamara, Warwick, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
Before: DAVID S. RITTER, J.P., HOWARD MILLER, STEPHEN G. CRANE BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the County Court, Orange County, to decide de novo the defendant's motion to withdraw his plea of guilty, on which motion the defendant's appellate counsel shall represent him, and, if the motion is denied, to resentence the defendant.
Prior to sentencing, the defendant moved, pro se, to withdraw his plea of guilty. The defendant's right to counsel was adversely affected when his attorney, in effect, became a witness against him and took a position adverse to his ( see People v. Elting, 2 A.D.3d 455, 456; People v. Caccavale, 305 A.D.2d 695; People v. Bernard, 242 A.D.2d 387; People v. Spearman, 210 A.D.2d 268). Consequently, the County Court should not have decided the motion without first assigning the defendant new counsel ( see People v. Elting, supra; People v. Caccavale, supra; People v. Bernard, supra; People v. Spearman, supra). Accordingly, the matter is remitted to the County Court, Orange County, to decide de novo the defendant's motion to withdraw his plea of guilty, on which motion the defendant's appellate counsel shall represent him. In the event the motion is denied, the County Court shall resentence the defendant.
RITTER, J.P., H. MILLER, CRANE and COZIER, JJ., concur.