Opinion
March 2, 1998
Appeal from the Supreme Court, Queens County (Spires, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the defendant's motion to withdraw his plea, on which motion the defendant's appellate counsel shall represent him, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, is to file its report with all convenient speed.
Taken as a whole, the record indicates the clear intent of the court to condition the promised sentence upon the defendant's appearance on the date scheduled for sentencing. Because the defendant absconded and failed to appear on the scheduled date, the court was no longer bound by its promise and was free to impose a longer sentence (see, People v. Gwynn, 201 A.D.2d 501; People v. Gamble, 111 A.D.2d 869).
At sentencing, the defendant made a pro se application for permission to withdraw his plea of guilty, alleging that his attorney had misinformed him about an aspect of the plea agreement. Thereafter, when given an opportunity to make a statement to the court, the defense counsel proceeded to refute his client's allegations and make other comments which were injurious to the defendant's case.
The defendant's right to counsel was adversely affected when his attorney became a witness against him (see, People v. Rozzell, 20 N.Y.2d 712; People v. Santana, 156 A.D.2d 736). Once counsel took a position adverse to the defendant, the court should not have proceeded to determine the defendant's application to withdraw his plea without first assigning the defendant new counsel (see, People v. Wilson, 15 N.Y.2d 634; People v. Santana, supra). Thus, the matter is remitted for a new determination at which the defendant shall be represented by appellate counsel. At this juncture, we voice no opinion as to the merit of the defendant's application.
Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.