Opinion
105912.
2015-04-02
The PEOPLE of the State of New York, Respondent, v. Lamar PRATER, Appellant.
Peters, P.J., Garry and Rose, JJ., concur.
Carolyn B. George, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.
LYNCH, J.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered May 6, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. Defendant thereafter moved pro se to withdraw his plea, asserting, among other things, that counsel had pressured him into accepting the plea and that it was involuntary. After reviewing the plea minutes and hearing from defense counsel, County Court denied the motion and sentenced defendant, in accordance with the plea agreement, to five years in prison to be followed by five years of postrelease supervision. Defendant appeals.
In our view, the judgment must be modified. “It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” (People v. Mitchell, 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] [citations omitted] ). While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client ( see People v. Hutchinson, 57 A.D.3d 1013, 1014–1015, 868 N.Y.S.2d 807 [2008], lv. denied12 N.Y.3d 817, 881 N.Y.S.2d 25, 908 N.E.2d 933 [2009] ), make remarks that “affirmatively undermine” a defendant's arguments ( see People v. Pimentel, 108 A.D.3d 861, 863, 969 N.Y.S.2d 574 [2013], lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ), or otherwise “take a position that is adverse to the defendant” (People v. Russ, 118 A.D.3d 1039, 1040, 986 N.Y.S.2d 364 [2014] [internal quotation marks and citations omitted]. Here, when asked to respond to defendant's pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him ..., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel's opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant ( see People v. Mitchell, 21 N.Y.3d at 967, 970 N.Y.S.2d 919, 993 N.E.2d 405; People v. Russ, 118 A.D.3d at 1040, 986 N.Y.S.2d 364; People v. McCray, 106 A.D.3d 1374, 1375, 966 N.Y.S.2d 271 [2013] ).
In light of this determination, we need not address defendant's remaining contentions.
ORDERED the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Schenectady County for assignment of new counsel and reconsideration of defendant's motion to withdraw his plea; and, as so modified, affirmed.