Opinion
1037 KA 19–01120
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Bryan L. LEE, Defendant-Appellant.
TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Cayuga County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ). We agree with defendant that he was deprived of effective assistance of counsel because his attorney took a position adverse to him when defendant initially sought the assignment of new counsel and made other statements that, under the circumstances, County Court properly "deemed to have [been] a motion to withdraw his guilty plea" ( People v. King , 235 A.D.2d 364, 364, 652 N.Y.S.2d 977 [1st Dept. 1997] ; see generally People v. Martinez , 166 A.D.3d 1558, 1559, 88 N.Y.S.3d 732 [4th Dept. 2018] ). Although defense counsel had no duty to support defendant's requests, and defense counsel subsequently filed a motion to withdraw the plea on other grounds, defense counsel in effect became a witness against defendant by taking a position adverse to him with respect to his initial request to withdraw the plea, thereby depriving defendant of effective assistance of counsel (see People v. Hunter , 35 A.D.3d 1228, 1228, 826 N.Y.S.2d 867 [4th Dept. 2006] ; People v. Lewis , 286 A.D.2d 934, 934-935, 731 N.Y.S.2d 305 [4th Dept. 2001] ). Indeed, defense counsel stated that he thought defendant's request was "silly" and that it was defense counsel's "opinion that not only was the plea informed, [defendant] made the correct decision" to take the plea (see People v. Washington , 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015] ). Consequently, the court "should not have determined the motion [and request to withdraw the plea] without first assigning a different attorney to represent defendant" ( People v. Chrysler , 233 A.D.2d 928, 928, 649 N.Y.S.2d 566 [4th Dept. 1996] ). We therefore hold the case, reserve decision, and remit the matter to County Court for the assignment of new counsel and a de novo determination of defendant's motion and request to withdraw the guilty plea (see People v. Chaney , 294 A.D.2d 931, 932, 741 N.Y.S.2d 776 [4th Dept. 2002] ).