Opinion
November 8, 1996.
Case held, decision reserved and matter remitted to Erie County Court for further proceedings in accordance with the following
Before: Present — Green, J.P., Pine, Callahan, Doerr and Davis, JJ.
Defendant pleaded guilty to grand larceny in the third degree for bilking an elderly couple out of $160,000 as part of a home repair and improvement scam. Prior to sentencing, defendant made a pro se written motion to withdraw his plea on the ground that the Assistant District Attorney and his assigned counsel had misrepresented the potential sentence that he might receive if convicted on the charge alleged in the indictment. He also sought to have new counsel assigned to represent him. On argument of those motions, defense counsel stated that she felt it was "necessary for [her] to respond to the Defendant's motions in light of the fact that they accuse [her] of some very serious wrongdoing." After defense counsel outlined her "perception" of the case against defendant and her recommendation that he accept the plea, County Court denied defendant's motions. The court should not have determined the motions without first assigning a different attorney to represent defendant ( see, People v Kellar, 213 AD2d 1063). A defendant is denied effective assistance of counsel when his attorney, "either voluntarily or at the court's urging, became a witness against him" ( People v Santana, 156 AD2d 736, 737; see, People v Welsh, 207 AD2d 1025). Therefore, we reserve decision and remit the matter to Erie County Court for a de novo determination of the motion of defendant to withdraw his plea of guilty ( see, People v Singletary, 233 AD2d 849 [decided herewith]). (Appeal from Judgment of Erie County Court, Rogowski, J. — Grand Larceny, 3rd Degree.)