Opinion
2015-03-11
The PEOPLE, etc., respondent, v. Anthony D. ARMSTEAD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered September 17, 2012, convicting him of criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.
ORDERED that the matter is remitted to the Supreme Court, Queens County, for a hearing on the defendant's motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter, and the appeal is held in abeyance pending receipt of the Supreme Court's report, which shall be filed with all convenient speed.
Prior to the imposition of sentence upon the defendant's conviction of criminal possession of a controlled substance in the seventh degree, the defendant moved to withdraw his plea of guilty to that charge on the ground that his plea was not knowingly, intelligently, and voluntarily made. At sentencing, assigned counsel stated that the defendant's plea was validly entered, and denied certain factual allegations raised by the defendant.
The defendant's right to counsel was adversely affected when his attorney took a position adverse to his ( see People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405; People v. Barr, 116 A.D.3d 1061, 1062, 983 N.Y.S.2d 875; People v. Duart, 113 A.D.3d 788, 789, 978 N.Y.S.2d 369; People v. Graves, 95 A.D.3d 1034, 1034–1035, 943 N.Y.S.2d 593; People v. Vega, 88 A.D.3d 1022, 1022–1023, 931 N.Y.S.2d 883; People v. Dixon, 63 A.D.3d 957, 957, 880 N.Y.S.2d 529). The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion ( see People v. Barr, 116 A.D.3d at 1062, 983 N.Y.S.2d 875; People v. Duart, 113 A.D.3d at 789, 978 N.Y.S.2d 369; People v. Graves, 95 A.D.3d at 1034–1035, 943 N.Y.S.2d 593; People v. Vega, 88 A.D.3d at 1022–1023, 931 N.Y.S.2d 883; People v. Dixon, 63 A.D.3d at 957, 880 N.Y.S.2d 529). Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing on the defendant's motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. The appeal will be held in abeyance pending receipt of the Supreme Court's report. We express no opinion as to the merits of the defendant's motion, and we decide no other issues at this time.