It is the defendant's contention that by virtue of this involvement of his lawyer he was denied the effective and affirmative representation of counsel and became entitled, at that juncture, to the appointment of new counsel. Our decisions in People v. Boyd ( 22 N.Y.2d 707) and People v. Rozzell ( 20 N.Y.2d 712) point the conclusion here. When the trial judge asked the defendant's lawyer to check on the facts bearing on the alibi, the defendant was "deprived of the effective assistance of counsel" at a "critical stage of the proceeding" ( People v. Rozzell, 20 N.Y.2d, at p. 713).
The possibility of a conflict of interest is raised in that portion of the minutes of the motion to withdraw the guilty plea where the judge asked Ronson to comment on the merits of Guzman's claim that Ronson had provided ineffective assistance by coercing him into pleading guilty. A conflict of interest may exist when an attorney is asked to speak on the record with regard to a motion brought by his client that implicates the attorney's own conduct. See Lopez v. Scully, 58 F.3d 38, 40 (2d Cir. 1995);People v. Rozzell, 20 N.Y.2d 712, 713, 229 N.E.2d 452, 453, 282 N.Y.S.2d 775 (N.Y. 1967) (recognizing the difficulty "for counsel effectively to represent the right of the accused to have judicial consideration given to his motion to withdraw a plea of guilty, where counsel is himself called as a witness in an inquiry which penetrates deeply into the intraprofessional relationship"). An "actual conflict" exists only when "the attorney's and defendant's interest diverge with respect to a material factual or legal issue or to a course of action," United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (citation and internal quotations omitted), not for every "routine disagreement" with appointed counsel that arises, United States v. White, 174 F.3d 290, 296 (2d Cir. 1999) Prejudice is presumed where an actual conflict that adversely affected the attorney's performance is shown to exist.
Defense counsel responded that he was not adopting the motion, and that "other than the fact that my client wishes to file the motion and have separate counsel appointed for that purpose, I'm not aware of a legal basis." "It is well settled that a defendant has [the] 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 ; seePeople v. Rozzell, 20 N.Y.2d 712, 713, 282 N.Y.S.2d 775, 229 N.E.2d 452 ). "Counsel ‘takes a position adverse to his [or her] client,’ depriving him or her of meaningful representation, ‘when stating that the defendant's motion lacks merit’ " ( People v. Fellows, 192 A.D.3d 701, 701–702, 139 N.Y.S.3d 839, quoting People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ).
In People v. Wilson ( 15 N.Y.2d 634, 635) the court, in remanding the matter to the County Court on the issue of defendant's mental and physical condition at the time of the plea where a similar conflict existed between a defendant and his counsel, held that such a difference of opinion between attorney and client over a motion to withdraw a plea required "the court to take notice of the extent to which defendant was then effectively represented by counsel". (See, also, People v Rozzell, 20 N.Y.2d 712.) On this record it is manifest that the judgment of conviction should be reversed, the motion granted and the defendant's guilty plea vacated for the reason that the plea was substantively defective, and further because the defendant was deprived of the effective assistance of counsel from the outset, more particularly at that point in the proceedings when he finally gave an allocution which satisfied the court, the District Attorney and his own counsel.
By this holding we do not mean to infer that counsel did not act with the utmost good faith. In fact he did so act. However, in the circumstances of this case, where counsel was compelled to be a witness called by the People, he was placed in an untenable position and by virtue of the lawyer's involvement, defendant was denied the effective and affirmative representation of counsel and became entitled to the appointment of a new attorney ( People v. Rozzell, 20 N.Y.2d 712; People v. Kennedy, 22 N.Y.2d 280; People v. Boyd, 22 N.Y.2d 707). Concur — Botein, P.J., Steuer, Rabin and McNally, JJ.; Tilzer,
A Judge of this Court granted defendants leave to appeal. 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 ( see People v. Boyd, 22 N.Y.2d 707, 291 N.Y.S.2d 816, 238 N.E.2d 923 [1968];People v. Rozzell, 20 N.Y.2d 712, 282 N.Y.S.2d 775, 229 N.E.2d 452 [1967] ). The motion court has broad discretion in its fact-finding inquiry on the motion and often a “limited inter-rogation by the court will suffice” ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ). “Only in the rare instance will a defendant be entitled to an evidentiary hearing” ( id.).
A Judge of this Court granted defendants leave to appeal. 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 (see People v Boyd, 22 NY2d 707 [1968]; People v Rozzell, 20 NY2d 712 [1967]). The motion court has broad discretion in its fact-finding inquiry on the motion and often a "limited interrogation by the court will suffice" (People v Tinsley, 35 NY2d 926, 927 [1974]).
Office of the Appellate Defender, New York City ( Matthew L. Mazur, Richard M. Greenberg and Eunice C. Lee of counsel), for appellant in the second above-entitled action. In the absence of inquiry sufficient to establish that there was no actual conflict of interest, the Supreme Court's denial of defense counsel's motion for substitution of counsel deprived Carlos Rodriguez of his right to conflict-free counsel at the sentencing hearing. ( People v Ortiz, 76 NY2d 652; People v Sides, 75 NY2d 822; People v Medina, 44 NY2d 199; People v Rozzell, 20 NY2d 712; United States v Davis, 239 F3d 283; Holloway v Arkansas, 435 US 475; People v Linares, 2 NY3d 507; Lopez v Scully, 58 F3d 38; People v Williams, 35 AD3d 1085; People v Ulloa, 300 AD2d 60.) Robert T. Johnson, District Attorney, Bronx ( Cynthia A. Carlson, Joseph N. Ferdenzi and Nancy Killian of counsel), for respondent in the second above-entitled action.
In a more general challenge, defendant argues that, when Sparrow took the stand in all the proceedings, defendant was left without counsel at critical stages of the criminal process. It is true that, under some circumstances, a defendant has been denied effective assistance of counsel when his attorney testified in court (see People v Kennedy, 22 N.Y.2d 280; People v Rozzell, 20 N.Y.2d 712). Those cases are distinguishable, however, in that counsel there was requested by the court to testify in such a manner as to represent the State rather than the defendant.
Decided January 8, 1970 Motion to compel compliance with the decision of the Court of Appeals dated July 7, 1967 ( 20 N.Y.2d 712) dismissed, on the ground the moving papers show a hearing, as directed by the Court of Appeals, was held.