Opinion
November 8, 1996.
Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following.
Before: Present — Pine, J.P., Lawton, Fallon, Balio and Davis, JJ.
Defendant pleaded guilty to attempted burglary in the first degree. Prior to sentencing, defendant moved, pro se, to withdraw his plea. Defendant's retained counsel sought to withdraw as counsel, making several statements in open court that contradicted factual assertions set forth by defendant on his motion. We conclude that defendant was denied effective assistance of counsel when his attorney became a witness against him ( see, People v Kellar, 213 AD2d 1063; see also, People v Santana, 156 AD2d 736, 737). The court therefore should not have determined the motion of defendant to withdraw his guilty plea without first granting counsel's motion to withdraw and permitting defendant to retain a different attorney to represent him ( see, People v Kellar, supra; People v Welsh, 207 AD2d 1025). Thus, we reserve decision and remit the matter to Onondaga County Court for a de novo determination of the motion of defendant to withdraw his plea of guilty ( see, People v Chrysler, 233 AD2d 928 [decided herewith]). (Appeal from Judgment of Onondaga County Court, McCarthy, J. — Attempted Burglary, 1st Degree.)