The People, Respondent,v.Josue Deliser, Appellant.BriefN.Y.May 2, 2013To be argued by: DIANE R. EISNER (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Kings County Indictment Numbers 2938/2006 5477/2007 -against- JOSUE DELISER, Defendant-Appellant. RESPONDENT'S BRIEF AND APPENDIX LEONARD JOBLOVE DIANE R. EISNER Assistant District Attorneys of Counsel November 30, 2012 Telephone: Facsimile: 718-250-2489 718-250-2549 CHARLES J. HYNES DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii QUESTION PRESENTED............................................. v PRELIMINARY STATEMENT .......................................... 1 SUMMARY OF FACTS AND ARGUMENT ............................. . . . . . 2 STATEMENT OF FACTS .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction ..................................... . . . . . . . . . 5 Review of Grand Jury Proceeding for Indictment Number 2938/2006 ........................................7 The Huntley/Wade/Dunaway Hearing on Indictment Number 2938/2006 ........................................7 Review of Grand Jury Proceeding for Indictment Number 5477/2007 ........................................ 9 The Guilty Pleas .................................. . . . . . . . . 9 Defendant's Pro Se Motion to Withdraw His Guilty Pleas .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Proceedings on Defendant's Motion............... 14 The Sentencing ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Appeal to the Appellate Division..................... 16 ARGUMENT - THE SUPREME COURT PROPERLY EXERCISED ITS DISCRETION BY DECIDING DEFENDANT'S PRO SE MOTION TO WITHDRAW-- HIS GUILTY PLEAS WITHOUT FIRST ASSIGNING HIM A NEW ATTORNEY, BECAUSE DEFENDANT DID NOT SHOW THAT HIS ATTORNEY HAD A CONFLICT OF INTEREST THAT ADVERSELY AFFECTED HIS PERFORMNCE REGARDING THAT MOTION. .......... 18 CONCLUSION - THE ORDER OF THE APPELLATE DIVISION AFFIRMING DEFENDANT'S JUDGMENTS OF CONVICTION SHOULD BE AFFIRMED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 APPENDIX - Decision Regarding Indictment Number 2938/2006 ... ....... RAI Portions of Transcript of Suppression Hearing .... . . . . . . . RA4 Decision Regarding Indictment Number 5477/2007 ......... RA25 Certification Pursuant to C. P.L.R. § 2105 .............. RA26 TABLE OF AUTHORITIES PAGE CASES Boykin v. Alabama, 395 U.S. 238 (1969) ......................... 25 Brady v. United States, 397 U. S. 742 (1970) . - .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 26 Jones v. Barnes, 463 U. S. 745 (1983) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 21, 22 Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995) . . 3, 19, 29, 30, 33, 34 Moran v. Burbine, 475 U. S. 412 (1986) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 25 People v. Alexander, 97 N. Y. 2d 482 (2002) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 22, 31 People v. Atkinson, 58 A. D. 3d 943 (2d Dep't 2009) .. .. .. .. .. .. .. .. .. .. .. .. .. .. 31 People v. Baret, 11 N. Y.3d 31 (2008 ) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 26 People v. Caple, 279 A. D. 2d 635 (2d Dep't 2001) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 28 People v. Coco, 220 A. D. 2d 312 (1st Dep't 1995) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 32 People v. Colville, No. 161 (N. Y . Oct. 23, 2012) .. .. .. .. .. .. .. 21, 22, 24 People v. Davis, 246 A.D.2d 931 (3d Dep't 1998 ) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 24 People v. Davis, 2012 Colo. App. LEXIS 13 (Colo. Ct. App. Jan. 5, 2012), cert. granted, 2012 Colo. LEXIS 802 (Colo. Nov. 5, 2012) ........................................23 People v. Deliser, 85 A.D.3d 1047 (2d Dep't 2011) ........... 1, 16 People v. Deliser, 19 N.Y.3d 959 (2012) ..................... 1, 17 People v. Dominguez, 2005 CaL. App. Unpub. LEXIS 7953 (CaL. ct. App. Aug. 31, 2005) ..................................... 22 People v. Ferguson, 67 N.Y.2d 383 (1986) ................... 21, 22 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ....................26 People v. Friedman, 39 N.Y.2d 463 (1976) ....................... 28 ii TABLE OF AUTHORITIES (cont' d) PAGE People v. Garcia, 71 A.D.3d 555 (1st Dep't), aff'd, 16 N.Y.3d 93 (2010) ................................ .........37 People v. Grace, 59 A.D.2d 275 (1st Dep't 2009) ................28 People v. Graves, 95 A.D.3d 1034 (2d Dep't 2012) ............... 37 People v. Hernandez, 207 A. D.2d 659 (1st Dep't 1994) .. .. .. .. .. .. .. .. .. .. .. 32 People v. Jones, 232 A.D.2d 505 (2d Dep't 1996) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 31 People v. Konstantinides, 14 N. Y. 3d 1 (2009) .. .. .. .. .. .. .. .. .. .. .. .. 3, 19, 29 People v. Lewis, 46 N. Y. 2d 825 (1978) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 31 People v. Lewis, 286 A. D. 2d 934 (4th Dep't 2001) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 37 People v. Linares, 2 N. Y. 3d 507 (2004 ) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 19 People v. Mann, 32 A.D.3d 865 (2d Dep't 2006) .................. 31 People v. Ortiz, 76 N.Y.2d 652 (1990) .......................... 29 People v. Porto, 16 N.Y.3d 93 (2010) ............... 19, 34, 35, 36 People v. Rozzell, 20 N. Y.2d 712 (1967) ........................ 28 People v. Stimus, 2012 N.Y. App. Div. LEXIS 7766 (4th Dep't Nov. 16, 2012) .............................................. 37 People v. White, 32 N.Y.2d 393 (1973) .......................... 26 United States v. Davis, 239 F.3d 283 (2d Cir. 2001) ............20 Ward v. Jenkins, 613 F.3d 692 (7th Cir. 2010) .................. 23 iii STATUTES TABLE OF AUTHORITIES (cont' d) PAGE C.P.L. § 220.60............ ................. ...................22 110.00 ................................................1, 6 120.00 ................................................... 6 120.05 ................................................... 6 120.10...................................................6 125.25 ................................................ 1, 6 155.25...................................................6 155.30...................................................6 160.05...................................................6 160.10...................................................6 160.15................................................1,6 165.40 ................................................... 6 265.01 ...................................................7 265.03 ............................................0....0. 7 P. L. § P. L. § P. L. § P. L 0 § PoL. § P. L. § P. L. § P. L. § PoL. § PoL. § P. L. § P. L. § P. L. § iv QUESTION PRESENTED Whether the Supreme Court properly exercised its discretion by deciding defendant's pro se motion to withdraw his guilty pleas wi thout first appointing new counsel to represent defendant. v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Kings County Indictment Numbers 2938/2006 5477/2007 -against- JOSUE DELISER, Defendant-Appellant. RESPONDENT'S BRIEF PRELIMINARY STATEMENT Defendant, Josue Deliser, appeals from the June 21, 2011 order of the Appellate Division, Second Department, affirming the July 21, 2009 judgments convicting him, upon his guilty pleas, of one count each of attempted second-degree murder (P. L. §§ 110.00/125.25 (1)) and first-degree robbery (P.L. § 160.15 (2)), and sentencing him, as a second violent felony offender, to concurrent terms of ten years' imprisonment to be followed by five years of post-release supervision on each count (Gerges, J., at pleas and sentences). See People v. Deliser, 85 A.D.3d 1047 (2d Dep't 2011). By order dated June 1, 2012, Judge Theodore T. Jones granted defendant leave to appeal to this Court from the order of the Appellate Division. People v. Deliser, 19 N.Y.3d 959 (2012) . Defendant is incarcerated pursuant to these judgments. SUMMARY OF FACTS AND ARGUMENT Defendant, Josue Deliser, was charged by two separate indictments with the commission of two separate crimes in Brooklyn, one in April 2006 and the other in June 2007. Defendant eventually entered a guilty plea in satisfaction of each indictment, with the promise that he would receive concurrent sentences of imprisonment of ten years, to be followed by five years of post-release supervision, on his conviction under each indictment. Before the scheduled sentencing date, defendant filed a pro se motion to withdraw his guilty pleas, asserting, among other claims, that his attorney had coerced and tricked him into pleading guilty. defendant, and After hearing from defense counsel and from after reviewing the minutes of the plea proceeding, the court denied the motion to withdraw the pleas and sentenced defendant in accordance with the promise at the time of the pleas. On appeal to the Appellate Division, defendant claimed that the Supreme Court had erred by deciding his pro se motion to withdraw his guilty pleas without first assigning him a new attorney to represent him on that motion. The Appellate Division rejected that claim and affirmed the judgments of conviction. 2 On appeal to this Court, defendant again claims that, before the Supreme Court decided his pro se motion to withdraw the guilty pleas, the court was required to assign a new attorney to represent him. That claim is meri tless. When, as in this case, a defendant claims that an alleged conflict of interest between the defendant and his attorney required the court to assign a new attorney, the defendant must show both (1) that an actual or potential conflict of interest existed, and (2) that the conflict of interest operated on, or adversely affected, the attorney's performance. See People v. Konstantinides, 14 N.Y.3d 1, 10 (2009); Lopez v. Scully, 58 F.3d 38, 41-42 (2d Cir. 1995). Defendant did not make either of those required showings. First, a conflict did not arise between defendant and his attorney, because the attorney did not take a position adverse to defendant's motion to withdraw the pleas. Second, defendant has not shown that any alleged conflict between defendant and his attorney adversely affected the attorney's performance regarding the motion to withdraw the pleas. On the contrary, advocating for withdrawal of defendant's guilty pleas would not have been a plausible defense strategy, because there was no reason to believe that a motion to withdraw the pleas could have succeeded, and because, in any event, withdrawal of the pleas would not have been in defendant's best interests, given the likelihood of a 3 significantly higher sentence if defendant had been convicted after trial. Therefore, the order of the Appellate Division and the judgments of conviction should be affirmed. 4 STATEMENT OF FACTS Introduction Defendant, Josue Deliser, was charged, by two separate indictments, in connection with two separate incidents. The first incident occurred on April 12, 2006, at about 2:00 p.m., near the corner of Smith and Baltic Streets in Brooklyn. At that time, defendant, co-defendant Robert Soman, and several others began following Jamel Pierson -- a stranger to defendant who was wearing a red bandana on his head. During an ensuing altercation, defendant stabbed Pierson in the face and chest with a knife and grabbed the bandana from his head. Pierson suffered from a collapsed lung and was hospitalized for several days, and the wound to his face required twelve stitches to close. The second incident occurred over one year later, on June 8, 2007, at about 12: 03 a.m., at the corner of Flatlands Avenue and East 82nd Street in Brooklyn. Defendant, acting in concert with co-defendants Tasha Rodriguez and Sherika Brown, stole a handbag and a cell telephone from Mildred Joseph at gunpoint. i i The facts set forth in the introduction are based upon the felony complaints regarding both incidents and upon suppression hearing testimony on Indictment Number 2938/2006. 5 For the attack on Pierson, defendant and Soman each was charged, by Kings County Indictment Numer 2938/2006, with one count each of attempted second-degree murder (P. L. §§ 110.00/125.25(1)) , attempted first-degree assault (P. L. §§ 110.00/120.10 (1) ) , fourth-degree criminal possession of a weapon (P.L. § 265.01(2)), and assault in the first, second, and third degrees (P.L. §§ 120.10(1),120.05(2),120.00(1)).2 For the robbery of Joseph, defendant, Rodriguez, and Brown each was charged, by Kings County Indictment Numer 5477/2007, with two counts of first-degree robbery (P.L. § 160.15 (2), (4)), and with additional counts of robbery in the second and third degrees (P.L. §§ 160.10(1), 160.05), fourth-degree grand larceny (P.L. § 155.30 (5)), petit larceny (P.L. § 155.25), fifth-degree criminal possession of stolen property (P.L. § 165.40), and criminal possession of a weapon in the second and fourth degrees 2 On October 27, 2006, co-defendant Soman pleaded guilty to attempted first-degree assault in satisfaction of the indictment. On November 27, 2006, Soman was sentenced to a term of imprisonment of five years and to five years of post-release supervision (Walsh, J., at plea and sentence). Soman did not appeal from his judgment of conviction. 6 (P.L. §§ 265.03(IJ(b), (3), 265.01(1)).3 Review of Grand Jury Proceeding for Indictment Number 2938/2006 The court reviewed the sufficiency of the evidence before the grand jury regarding Indictment Numer 2938/2006. By decision dated July 27, 2006, the court found legally sufficient evidence to support all of the charges, but concluded that the grand jury had not been properly instructed with respect to the count charging assault in the first degree (RA. 1-3).4 The Huntley/Wade/Dunaway Hearing on Indictment Numer 2938/2006 On April 12, 2007, and May 1, 2007, the court held a Huntley/Wade/Dunaway hearing on Indictment Numer 2938/2006. Before the start of testimony on April 12, 2007, the prosecutor informed the court that there was a plea offer to second-degree 3 On December 17, 2008, co-defendant Rodriguez pleaded guilty to attempted second-degree robbery. On January 5, 2009, Rodriguez was sentenced to a term of imprisonment of two years and to one year and six months of post-release supervision (Mangano, Jr., J., at plea; Garnett, J., at sentence). On December 4, 2008, co-defendant Brown pleaded guilty to attempted second-degree robbery. On January 14, 2009, Brown was sentenced to a term of imprisonment of two years and to two years of post- release supervision (DiMango, J., at plea and sentence). Rodriguez and Brown did not appeal from their judgments of conviction. 4 Numbers preceded by "A." refer to pages of defendant's appendix, which is appended to defendant's brief. Numbers preceded by "RA." refer to pages of respondent's appendix, which is appended to this brief. 7 assaul t with a five-year sentence. The court and defense counsel agreed that if defendant was convicted at trial of the top count of attempted murder, as a second violent felony offender, defendant faced a sentence of anywhere from eight to twenty-five years. When defense counsel confirmed that defendant was not interested in the plea, the court stated that defendant was "rolling the dice," because, "if he goes down at trial, it's going to be closer to 25 years than eight" (RA. 7-8). 5 At the conclusion of the hearing, the court ruled that the photographic array that was displayed to Pierson was not suggestive and that Pierson's identification of defendant's photograph provided probable cause for defendant's arrest. The court also ruled defendant's statement admissible. However, the court accepted defense counsel's argument that the display of a single Polaroid photograph of defendant to Pierson the day after Pierson's identification of defendant from the photographic array was suggestive and the court therefore granted the Wade portion of defendant's motion by precluding an in-court identification of defendant by Pierson unless the People established that Pierson had an independent source for such an identification. The court ordered an independent source hearing (RA. 12-13, 15-22), but defendant ultimately pled guilty before any such hearing was held. 5 The relevant portions of the hearing transcript are included in respondent's appendix. 8 Review of Grand Jury Proceeding for Indictment Number 5477/2007 Defendant moved for inspection of the grand jury minutes and dismissal of Indictment Number 5477/2007. By decision dated October 18, 2007, the court denied the motion to dismiss, finding legally sufficient evidence to support the charges and that the grand jury had been properly instructed (RA. 25). The Guilty Pleas At a court appearance on June 10, 2009, defense counsel informed the court that defendant wished to plead guilty in satisfaction of both indictments, with the understanding that he would receive concurrent sentences of imprisonment of ten years on his conviction under each indictment (A. 4-7). The court first took defendant's plea to attempted murder in the second degree in full satisfaction of Indictment Numer 2938/2006. Defendant was sworn, and, in response to questions from the court, defendant stated that he had completely discussed this case with his attorney (A. 7). Defendant informed the court that he was twenty- four years old, that he read and wrote English, that he had some college education and had worked as a tutor, that he was in good heal th, that he had not taken any drugs or alcohol in the previous twenty-four hours, and that he had not been treated or confined to a hospital for a mental illness or disorder (A. 8). When asked by the court if he had had sufficient time to consult with his 9 attorney before deciding to plead guilty, and if he was satisfied wi th the manner in which his lawyer had represented him, defendant replied, "Yes" (A. 8-9). Defendant stated that he understood the rights that he was waiving by pleading guilty and that he understood that a plea of guil ty was the same as a conviction after trial. When asked by the court if anyone had made any threats or forced him to plead guilty, defendant responded, "No" (A. 9-10). Defendant also stated that he understood that his sentence would include a period of five years of post-release supervision, and defendant stated that there were no other agreements between him and the District Attorney's Office or between him and the court (A. 10-11). The court then informed defendant that it would not accept his plea unless asked defendant defendant was, in fact, guilty, and the court to state in his own words what happened on April 12, 2006. Defendant responded that on that date, he attacked Jamel Pierson in Brooklyn. Defendant stated that there was no doubt in his mind that he wished to plead guilty, and he stated that he understood that everything that he had just said was under oath and that, if he had lied in any of his answers to the court's questions, he could be liable for perjury (A. 11-12). Defendant agreed to waive the right to appeal, and, after conferring with defense counsel, defendant stated that everything that he had just told the court was true. The court accepted 10 defendant's plea of guilty to attempted murder in the second degree in full satisfaction of Indictment Numer 2938/2006 (A. 13- 14) . The court then took defendant's plea to first-degree robbery in full satisfaction of Indictment Numer 5477/2007, going through a colloquy that was similar to the colloquy for the plea regarding the first indictment, including statements from defendant that he had discussed the case with his attorney, that nobody had threatened or forced him to plead guilty, that he had not lied in his answers to any of the court's questions, and that, on June 8, 2007, he had robbed somebody at gunpoint in Brooklyn. Defendant waived his right to appeal from this conviction as well (A. 14- 21) . The court accepted defendant's plea to first-degree robbery in full satisfaction of Indictment Numer 5477/2007, and stated that the ten-year sentence on that conviction would run concurrently with defendant's sentence under Indictment Numer 2938/2006 (A. 22-23). The court adjudicated defendant a second violent felony offender on both cases (A. 23-26). The court adjourned the case for sentencing to July 8, 2009 (A. 26). Defendant's Pro 5e Motion to Withdraw His Guilty Pleas By pro se papers dated June 24, 2009, defendant moved to withdraw his guilty plea in both cases, claiming that he was innocent of the charges, and claiming that his pleas had been 11 coerced by, among other circumstances, defense counsel's alleged undue pressure on him, which alleged pressure came from counsel allegedly saying, "(W) hy are you going to trial?" "(Y) ou are making a mistake," and "(I) f you go to trial you will be older than me by the time you get home" (A. 27-28). Defendant further alleged that he had believed that his cases were on for a hearing and not for trial on the date on which he had pled guilty and that he had not had sufficient time to think through what he was doing. Defendant also asserted that, after entering his guilty pleas, he learned that defense counsel "never put any type of motions on file" (A. 29). Defendant alleged that counsel had repeatedly told him that the court would impose the maximum sentence if defendant was convicted of both charges and, if his sentences were run consecutively, defendant could wind up with a fifty-year sentence, which was four times more than the ten-year sentence promised under the plea agreement (A. 29). Defendant alleged that he was also under stress when he entered the guilty pleas, because his grandmother was undergoing chemotherapy and wanted to see him before she died, because defendant's mother wanted defendant home before she moved to Panama to care for defendant's grandmother, and because the mother of defendant's daughter had warned him that if he went to trial and was "given all of those years," she would not be visiting with defendant's child (A. 29). 12 Defendant further alleged that he learned after pleading guilty that defense counsel had told his family not to come to court on the day on which he ultimately entered the pleas, telling them to come the next day instead, by which time defendant had already pled guilty. Defendant asserted that he was discouraged by his family's absence from court on the day on which he pled guilty, and that he did not realize on that day that their absence was caused by defense counsel's advice. Defendant asserted that his family's absence had led him to feel that they did not believe in his innocence and that, probably, the jury also would not believe in his innocence. Defendant's motion stated: "I wasn (' J t threaten (sicJ into taking the plea, but I was ,pressured, tricked and coerced by my attorney and DA into taking the plea" (A. 29). Defendant alleged that a statement that the prosecutor made at the plea proceeding, asserting that the People had wanted defendant's sentence to be fifteen years, "scared" defendant "that if (heJ did not take the 10 years my attorney told me about, that the court might go with the DA and raise my plea to 15 years," and defendant stated that his family "would of (sicJ been devastated if (heJ would of (sic) been found guilty after going to trial or if (heJ 13 would of (sic) had to plea to 12 or 15 years" (A. 30).6 Defendant's motion further stated, "I did not have enough time to think all of this through since I had no idea I was starting trial on that day, and I never been to trial before I was under the Impression that it was too late to ask for more time to think about it" (A. 30). The Proceedings on Defendant's Motion On July 8, 2009, which was the scheduled sentencing date, the court, which had received defendant's written motion prior to that date, adjourned defendant's sentencing to July 21, 2009 so that the court could review the plea minutes (A. 33-34). On July 21, 2009, after stating that it had received the plea minutes, the court asked the prosecutor and defense counsel to comment on the motion (A. 37). The prosecutor asked the court to impose the promised sentence (A. 37). Defense counsel noted that the motion was his client's, and he informed the court that he had met with or had video conferences with defendant numerous times in connection with these cases, that he had given defendant all of the paperwork regarding his cases, and that he had kept defendant informed about his cases. Defense counsel stated that defendant's 6 At the plea proceeding, the prosecutor apparently misspoke about the People having recommended a sentence of fifteen years. He thereafter stated that the People were recommending a twelve- year sentence and had earlier offered nine years for both cases (A. 6-7). 14 exposure on the two cases was about fifty years and that, under the plea, with the time that defendant had already served, defendant would probably be out in another five years, at which time defendant would be about thirty years old. Defense counsel said that there was a statement in the attempted murder case and property recovered in the robbery case, so that "they were two strong cases against him and I think he made a knowing plea and I think it was in his best interest" (A. 37-38). Defendant was invited to speak and he said, "Honestly, excuse me, I'm innocent so I don't think it was fair the way I was coerced into pleading to ten years and I ask that you please give me less time" (A. 38). The court then read on the record the portions of the plea minutes that showed that the court had told defendant that it would not accept his pleas unless he was guilty, and showed that defendant had assured the court that he was guilty of both crimes, admitting, under penalty of perjury, that on one date he had attacked Jamel Pierson and that on a different date he had robbed another person at gunpoint (A. 38-40). After reading these portions of the plea minutes, the court denied defendant's motion to withdraw the pleas (A. 40). 15 The Sentencing Immediately after the court denied defendant's motion to wi thdraw the pleas, the court imposed the promised concurrent sentences of ten years' imprisonment, to be followed by five years of post-release supervision (A. 41-42). The Appeal to the Appellate Division Defendant appealed from his judgments of conviction to the Appellate Division, Second Department, claiming that defense counsel's statements to the court regarding defendant's motion to withdraw his pleas amounted to defense counsel becoming a witness against defendant and undermining his motion, and that the court therefore should not have decided his motion without first appointing new counsel to represent him. By a decision and order dated June 21, 2011, the Appellate Division affirmed defendant's judgments of conviction (A. 2-3). People v. Deliser, 85 A.D.3d 1047 (2d Dep't 2011). After noting that a guilty plea will be upheld as valid if it was knowingly, voluntarily, and intelligently entered, and that the decision whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the motion court, the Appellate Division concluded that defendant's guilty pleas were knowingly, voluntarily, and intelligently entered, and that his claims of coercion were unfounded (A. 2). The Appellate Di vision further concluded that the Supreme Court properly denied 16 defendant's motion to withdraw his pleas, because the record showed that defense counsel did not take a position adverse to defendant's motion (A. 3). By an order dated June 1, 2012, defendant was granted leave to appeal to this Court (A. 1). People v. Deliser, 19 N. Y. 3d 959 (2012) (Jones, J.). 17 ARGUMENT THE SUPREME COURT PROPERLY EXERCISED ITS DISCRETION BY DECIDING DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS GUILTY PLEAS WITHOUT FIRST ASSIGNING HIM A NEW ATTORNEY, BECAUSE DEFENDANT DID NOT SHOW THAT HIS ATTORNEY HAD A CONFLICT OF INTEREST THAT ADVERSELY AFFECTED HIS PERFORMNCE REGARDING THAT MOTION. Defendant claims that the Supreme Court erred by proceeding to decide defendant's pro se motion to withdraw his guilty pleas without first assigning him a new attorney. Defendant's claim is, in essence: (a) that a conflict of interest arose between defendant and his attorney because defendant asserted in his pro se motion to withdraw his guilty pleas that his attorney had tricked and coerced him into pleading guilty, and because his attorney responded to that motion by stating that, in his opinion, the pleas were "knowing" and in defendant's "best interest"; and (b) that the alleged conflict required the court to assign a new attorney to represent defendant on the motion to withdraw the pleas. That claim is meritless for two separate reasons. First, a conflict did not arise between defendant and his attorney, because counsel did not take a position adverse to defendant's motion to withdraw the pleas, and it was entirely appropriate for defense counsel to express the view that, in his professional judgment, the pleas had been entered knowingly and were in his client's best interest. Second, in any event, defendant has not shown that any 18 alleged conflict between defendant and counsel adversely affected counsel's performance regarding the motion to withdraw the pleas. A criminal defendant is entitled to the assignment of a new attorney only upon a showing of "good cause." People v. Linares, 2 N.Y.3d 507, 510 (2004). The determination of whether there is good cause to assign a new attorney is within the discretion of the trial court. People v. Porto, 16 N. Y.3d 93, 100 (2010); Linares, 2 N.Y.3d at 510-11. In order to establish that an alleged conflict of interest between a defendant and his attorney required the court to assign a new attorney, the defendant must show both (1) that an actual or potential conflict of interest existed, and (2) that the conflict of interest operated on, or adversely affected, the attorney's performance. See People v. Konstantinides, 14 N.Y.3d 1, 10 (2009); Lopez v. Scully, 58 F.3d 38, 41-42 (2d Cir. 1995). The question whether a conflict of interest operates on the defense is a mixed question of law and fact, and consequently this Court may disturb a determination by the Appellate Division on this issue only if it lacks any record support. Konstantinides, 14 N.Y.3d at 10-11. In this case, the Supreme Court did not abuse its discretion by deciding defendant's pro se motion to withdraw his guilty pleas without first assigning him a new attorney, because defendant did not make either of those required showings. 19 First, neither an actual nor a potential conflict of interest arose between defendant and his attorney. Defendant's assertion that his attorney had "pressured, tricked and coerced" him into pleading guilty (A. 29) apparently relied primarily on the allegations that counsel had informed him that, if he was found guilty on both charges, he would receive a sentence of fifty years, and that counsel had stated that defendant would be making a mistake if he proceeded to trial (A. 28-29). "(A) s is frequently the case (when a defendant makes a pro se motion to withdraw a guilty plea based on the allegation that his attorney coerced him into pleading guilty), if a defendant's allegations describe only competent counsel's candid advice about the risks of going to trial, counsel will not be placed in an actual conflict between advocating for his client's interests and his own." United States v. Davis, 239 F.3d 283, 286-87 (2d Cir. 2001). In this case, insofar as defendant's assertion that his attorney had "pressured, tricked and coerced" him into pleading guilty referred to counsel's "candid advice about the risks of going to trial" (see id.), that assertion did not create either an actual or a potential conflict of interest. Moreover, contrary to defendant's contention, his attorney did not render ineffective assistance, and did not create an actual or potential conflict of interest, when he responded to defendant's pro se motion to withdraw his guilty pleas by stating 20 that the pleas were "knowing" and in defendant's "best interest" (A. 38). Defense counsel cannot be faulted for expressing that view, because the decision whether to seek to withdraw a guilty plea is ultimately a matter for counsel, not for the defendant, to decide. Indeed, if defense counsel had reflexively argued in support of defendant's motion to withdraw the pleas merely because defendant had made the motion as defendant seems to assume that counsel should have done -- then counsel could have been subject to a claim of ineffective assistance for advancing a motion merely because defendant had asked him to do so, even though counsel reasonably concluded that advancing the motion was contrary to the best interests of defendant. "(A) defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client." People v. Ferguson, 67 N.Y.2d 383, 390 (1986) . Those fundamental decisions include "whether to plead guil ty, whether to waive a jury, whether to testify at trial, and whether to take an appeal." Id.; see also Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983). But, as this Court has recently held, "it makes little sense to hold that the defendant personally has the last say about an issue when the defense as a whole does not." People v. Colville, No. 161, slip op. at 14 (N.Y. Oct. 23, 2012) (emphasis in original). In Colville, this Court held that the decision whether 21 to seek submission to the jury of lesser-included offenses is not a fundamental decision for the defendant to make, because the defense does not ultimately control whether a lesser-included offense will be submitted. Id. at 14-16. Applying that principle to this case, it follows that the decision whether to seek to withdraw a guilty plea similarly is not a fundamental decision for the defendant to make, but instead is a matter left to the sound judgment of counsel. "(A) decision to plead guilty rests exclusively with a defendant." Id. at 15 (emphasis in original). But a decision to withdraw a guilty plea, by contrast, rests in the discretion of the court. See C. P. L. § 220.60 (3); People v. Alexander, 97 N.Y.2d 482, 485 (2002). Therefore, like the decision whether to submit lesser-included offenses to a jury, the decision whether to withdraw a guilty plea is not wi thin the control of the defendant. Thus, while the decision whether to enter a plea of guilty is entirely within the control of the defendant, and consequently is a fundamental decision that is reserved to the defendant (see Jones, 463 U.S. at 753 n.6; Ferguson, 67 N.Y.2d at 390), the decision whether to withdraw a previously entered plea of guilty is not entirely within the control of the defendant, and consequently is not a fundamental decision that is reserved to the defendant. See Colville, slip op. at 14-16. See also People v. Dominguez, 2005 Cal. App. Unpub. LEXIS 7953, at *21 (Cal. Ct. App. 22 Aug. 31, ineffecti ve 2005) (unpublished opinion) assistance of counsel because (defendant claimed counsel refused to present a motion to withdraw defendant's guilty plea; court rej ected any suggestion "that defense counsel necessarily acted incompetently in failing to bring a motion to withdraw defendant's guilty plea . . . on the theory that a defendant has the 'ultimate authority' to decide whether to seek to withdraw a guilty plea and defense counsel 'has a duty to represent the accused on the motion regardless of counsel's own opinion about the motion'''). But see People v. Davis, 2012 Colo. App. LEXIS 13, at *38-44 (Colo. ct. App. Jan. 5, 2012) ("the decision to withdraw a guilty plea implicates an inherently personal right that must be exercised directly by an accused"), cert. granted, 2012 Colo. LEXIS 802 (Colo. Nov. 5, 2012); Ward v. Jenkins, 613 F.3d 692, 699 (7th Cir. 2010) (if attorney refused to file motion to withdraw guilty plea despite defendant's direct instruction that he do so, his performance was constitutionally ineffective). Therefore, contrary to defendant's contention, his attorney was not ineffective for responding to defendant's pro se motion to withdraw his guilty pleas by stating that the pleas were knowing and in defendant's best interest. Because the decision whether to seek to withdraw a guilty plea is ultimately a decision for counsel to make, it was appropriate for counsel to express his view that defendant's pleas were in his best interest. Indeed, 23 just as, in Colville, the trial court violated the defendant's right to counsel by deferring to the defendant's choice regarding whether to submit lesser-included offenses, despite defense counsel's clearly stated views to the contrary, so too, in this case, the trial court would have violated defendant's right to counsel by deferring to defendant's request to withdraw his guilty pleas, despite defense counsel's clearly stated view that the pleas were in defendant's best interest. Furthermore, defendant's claim that a combination of circumstances pressured and coerced him into pleading guilty constituted a claim that his pleas had not been entered "voluntarily," and consequently defense counsel's statement that he thought that the pleas were "knowing" (A. 38) did not undermine defendant's motion to withdraw the pleas or amount to defense counsel becoming a witness against defendant. See People v. Davis, 246 A.D.2d 931 (3d Dep't 1998) (claim of implicit coercion unsupported by record of plea proceeding; new counsel not required where, in response to pro se motion to withdraw plea, defense counsel advised court that defendant wanted to withdraw plea but that, in counsel's opinion, plea was "knowing"). Indeed, the list of factors that induced defendant's pleas, as set forth in defendant's motion, amply demonstrated that the pleas were entered by defendant knowingly, after an informed assessment of his options. 24 In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court explained the difference between a waiver being "knowing" and a waiver being "voluntary" in the context of discussing whether a defendant had validly waived his Miranda rights. Noting that, to be valid, the waiver had to have been made "voluntarily, knowingly and intelligently" (id. at 421 (citation and internal quotation marks omitted)), the Court stated: The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. (citations omitted). In applying these separate requirements to the facts of that case, the Supreme Court concluded that "voluntariness" of the waiver was not at issue because the record was devoid of any suggestion that police had resorted to physical or psychological pressure to elicit the statements. Id. The Court then went on to conclude that there was no question about the defendant's "comprehension of the full panoply of rights set out in the Miranda warnings and of the potential consequences of a decision to relinquish them." Id. at 422. See also Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (guilty plea has been obtained in violation of due process if plea is not voluntary and knowing); 25 People v. White, 32 N.Y.2d 393, 399 (1973) (waiver of a constitutional right must be made both knowingly and voluntarily) . In asserting that defense counsel took a position adverse to defendant's on the motion to withdraw the pleas, defendant has conflated the separate requirements that a guilty plea must be both "knowing" and "voluntary. U The claim in defendant's motion was not that the pleas had not been entered knowingly. Indeed, the motion papers themselves, by listing the various circumstances that allegedly induced the pleas, amply demonstrated that the pleas were "knowing," because they were entered "with sufficient awareness of the relevant circumstances and likely consequences." See Brady v. United States, 397 U.S. 742, 748 (1970). Rather, defendant's claim was that the pleas were involuntary because undue pressure from defense counsel, defendant's family members, and the prosecutor had allegedly coerced the pleas. Nothing that defense counsel said regarding the motion undermined this claim. Cf. People v. Baret, 11 N.Y.3d 31, 34 (2008) (claim that defendant's plea was the result of threats made by a co-defendant was attack on the voluntariness of the plea); People v. Fiumefreddo, 82 N. Y .2d 536, 545-46 (1993) (construing attack on validity of connected plea to be attack on voluntariness of plea) . Moreover, the remainder of defense counsel's statement in reference to defendant's motion to withdraw the pleas -- namely, counsel's statement that he had conferenced the cases with 26 defendant many times, that he had always kept defendant informed, that defendant faced fifty years in prison, and that counsel thought that both cases against defendant were strong (A. 37-38) did not controvert any of the factual allegations made in defendant's motion and thus did not create an actual or potential conflict between defendant and counsel. Indeed, defendant stressed in his motion that defense counsel had repeatedly impressed upon him the grave risks of going to trial. Thus, defendant himself implicitly acknowledged that defendant and counsel had repeatedly conferred about defendant's cases and that counsel thought the pleas were in defendant's best interests. In addition, counsel refrained from commenting upon defendant's allegations that counsel had misadvised defendant's family about when to come to court and had misadvised defendant about what was scheduled to take place on the date on which defendant ultimately entered his pleas, and counsel refrained from commenting upon defendant's allegation that counsel had made no motions in the case (which allegation was patently false, given that motions to dismiss both indictments had been decided and given that the court had held a hearing at which counsel had obtained suppression of an in-court identification absent a showing of an independent source for such an identification). Consequently, in the absence of a showing of a conflict of interest, the trial court was not required to assign defendant a 27 new attorney to represent him on the motion to withdraw the guilty pleas. See People v. Friedman, 39 N.Y.2d 463, 467-68 (1976) (not ineffecti ve for defense counsel to make statements in good faith in interest of fairly presenting grounds for defendant's desire to withdraw his plea, where defendant claimed that he was under influence of drugs when he pled guilty, and counsel stated that defendant appeared well on day of plea and that psychiatrist who administered drugs told counsel that drugs would not likely still be affecting defendant on day of plea); People v. Grace, 59 A. D. 3d 275 (1st Dep't 2009) (court properly denied defendant's motion to withdraw plea, without granting requests of defendant and attorney for substitution of counsel; defendant's claims of coercion and ineffective assistance were unsubstantiated and were refuted by record of plea, and counsel's comments about his own actions did not provide any damaging factual information); People v. Caple, 279 A.D.2d 635, 636 (2d Dep't 2001) (defense counsel did not argue in opposition to plea withdrawal motion, become a witness against defendant, or make statements adverse to defendant; rather, defense counsel attempted to clarify the circumstances surrounding the plea proceedings; he "did not contradict any assertions made by the defendant, and said nothing which could have been determinative in the sentencing court's denial of the motion"; court properly denied motion without assigning new counsel); cf. People v. Rozzell, 20 N.Y.2d 712, 713 (1967) (new counsel should 28 have been appointed to represent defendant on plea withdrawal motion where court called defense counsel as witness at hearing on motion and inquired into conversations between counsel and defendant that related to defendant's guilt and that "penetrate (ed) deeply into the intraprofessional relationship") . In any event, regardless of whether an actual or potential conflict of interest arose between defendant and counsel regarding consideration of the motion to withdraw the pleas, defendant has not shown that any alleged conflict of interest adversely affected counsel's performance regarding that motion. For that reason as well, the trial court was not required to assign defendant a new attorney to represent him on the motion. For a defendant to establish that he received ineffective assistance of counsel because of an actual or potential conflict of interest with his attorney, the defendant must not only show that there was an actual or potential conflict of interest, but also must show that the conflict of interest "adversely affected his lawyer's performance. " Lopez, 58 F.3d at 41 ; see Konstantinides, 14 N. Y. 3d at 10 (defendant must show "that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" (quoting People v. Ortiz, 76 N.Y.2d 652,656-57 (1990) J ). "The test requires a defendant to demonstrate that some plausible alternative defense strategy or tactic might have been 29 pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyal ties or interests." Lopez, 58 F. 3d at 41 (citations and quotation marks omitted). "The term 'plausible alternative defense strategy' does not embrace all possible courses of action open to a defense attorney; it refers to those which a zealous advocate would reasonably pursue under the circumstances." Id. at 42. In this case, withdrawal of defendant's guilty pleas was not a "course () of action which a zealous advocate would reasonably (have) pursue (d) under the circumstances, " and consequently presentation of defendant's motion to withdraw the pleas was not a "plausible alternative defense strategy." See id. First, the motion to withdraw the guilty pleas had little chance of success, because the court had obtained the plea minutes, and those minutes revealed that, at the time of the entry of the pleas, defendant had stated that he understood the rights that he was waiving by pleading guilty, that he was satisfied with counsel, that nobody had coerced him to plead guilty, and that he was guilty of both of the charged crimes. In addition, neither counsel's own warnings to defendant about the maximum sentences that he faced nor any pressure that defendant may have received from family members to limit his prison exposure by pleading guilty constituted coercion that would render defendant's pleas 30 involuntary. Furthermore, whatever the cause for the absence of defendant's family members from court on the day on which the pleas were entered, the absence of those family members would not have provided a valid basis on which to challenge the voluntariness of defendant's pleas. Because the record of the plea proceeding established that defendant's pleas were entered knowingly and voluntarily, and because none of defendant's allegations in his pro se motion provided any reason for the court to find otherwise, defense counsel would have had no reason to believe that there was any chance of success in advancing a motion to withdraw defendant' s guilty pleas. See Alexander, 97 N. Y . 2d at 485-86 (trial court properly denied motion to withdraw guilty plea where plea colloquy showed that plea was voluntary; fact that defendant is "emotionally distraught" when pleading guilty affords no basis to withdraw plea); People v. Lewis, 46 N.Y.2d 825 (1978) ("coercion" by family members not a reason for withdrawing a guilty plea); People v. Atkinson, 58 A.D.3d 943 (3d Dep't 2009) (defense counsel's recommendation to accept plea agreement rather than face harsher sentence if convicted at trial not coercive and did not render plea involuntary); People v. Mann, 32 A. D. 3d 865 (2d Dep't 2006) (advice about risks of trial, including possible maximum sentence, insufficient to establish ineffective assistance of counselor coercion); People v. Jones, 232 A.D.2d 505 (2d Dep't 1996) (defense counsel's honest and frank assessment that, given 31 denial of suppression motions, defendant would likely not prevail at trial and would be subject to lengthy jail sentence not coercive); People v. Coco, 220 A.D.2d 312 (1st Dep't 1995) (plea withdrawal properly denied where defendant claimed that he was "confused" at plea proceeding and "almost forced" by his attorney and his family into pleading guilty); People v. Hernandez, 207 A.D.2d 659 (1st Dep't 1994) (no plea withdrawal where defendant alleged coercion by family members) . Moreover, defense counsel reasonably concluded that withdrawal of defendant's guilty pleas would not have been in defendant's best interests. Even before defendant was arrested on the robbery case, the judge presiding at the suppression hearing on the attempted murder case had warned defendant that if he "roll (ed) the dice" and was convicted at trial, then defendant, as a second violent felony offender, could expect to receive closer to the maximum sentence of twenty-five years than the minimum sentence of eight years (RA. 7-8). In addition, as defense counsel noted (see A. 38), the cases against defendant were strong, because defendant had given a statement in the attempted murder case and property had been recovered in the robbery case. Thus, in light of the strength of the cases against defendant and the likelihood that the sentence after trial would be considerably higher than the prison sentence of ten years that defendant had been promised on his pleas, advocating for the withdrawal of 32 defendant's pleas would not have been a plausible al ternati ve defense strategy, even if such a motion had had any chance of success. See Lopez, 58 F. 3d at 42 (presentation of defendant's pro se motion to withdraw guilty plea was not a plausible alternative defense strategy, given that "if successful the motion would have jeopardized the availability of a favorable plea and permitted the judge to impose a considerably higher sentence after trial") . The decision in Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995), upon which defendant relies, actually supports the conclusion that the appointment of new counsel to represent defendant on his plea wi thdrawal motion was not required. In Lopez, the Second Circuit concluded that an actual conflict had arisen between defense counsel and the defendant as a result of the allegations made in the defendant's motion to withdraw his guilty plea, because, in order to argue in favor of the motion, counsel would have had to admit to serious ethical violations and possibly subject himself to liability for malpractice, and counsel instead denied the allegations. Id. at 41. However, the Second Circuit held that that conflict did not entitle the defendant to the appointment of new counsel to represent him on the motion, because the defendant had failed to demonstrate that there was a "plausible alternative defense strategy" that might have been pursued but that was not undertaken due to the conflict. The Second Circuit concluded that 33 the presentation of the motion to withdraw the defendant's plea was not a plausible alternative defense strategy for counsel to have pursued, because, during the plea allocution, the defendant had admitted his guilt and had indicated that he understood his rights and had not been coerced into accepting the plea, and consequently, a challenge to the voluntariness of the plea "would undoubtedly have been rej ected and would have risked antagonizing the trial court immediately before sentencing." Id. at 42. The Second Circuit also noted that, even if successful, "the motion would have jeopardized the availability of a favorable plea and permitted the judge to impose a considerably higher sentence after trial. " Id. The Second Circuit concluded that the motion therefore lacked sufficient substance to be a viable alternative and that the conflict therefore did not require the appointment of new counsel on the motion. Id. Similarly, in defendant's case as in Lopez, advocating for plea withdrawal was not a plausible alternative defense strategy, and consequently any alleged conflict of interest did not require assignment of a new attorney to represent defendant on his motion to withdraw the pleas. The decision of this Court in People v. Porto, 16 N. Y. 3d 93 (2010), further supports the conclusion that the trial court in this case was not required to assign a new attorney to represent defendant on the motion to withdraw the pleas. In one of the two 34 cases consolidated on appeal in Porto, the defendant, prior to sentencing, moved to withdraw his guilty plea and to substitute counsel. Defense counsel stated that she felt constrained by ethical considerations from fully explaining the issue to the court, because it appeared that the defendant took issue with her performance as counsel, but she did state that the defendant believed that he had been coerced by counsel into accepting the plea offer. Id. at 98-99. This Court held that the trial court acted within its discretion by denying the motion to substitute counsel and by proceeding to sentence the defendant, because the court conducted a sufficient inquiry of the defendant and counsel to determine that the defendant's claims were unavailing. Id. at 102. In defendant's case, it is even clearer than it was in Porto that the trial court was not required to assign a new attorney, because in Porto, the defendant actually made a motion to substitute counsel, whereas in defendant's case, defendant made no such request. Moreover, for two reasons, it is inconsequential that counsel in defendant's case said more regarding the motion to withdraw the pleas than did counsel in Porto. First, in defendant's case, counsel did not dispute the truth of any of defendant's allegations. Second, regardless of counsel's statements about defendant's motion to withdraw the pleas, the trial court's review of the minutes of the plea proceeding and the 35 court's inquiry of defendant showed that the motion was meritless, and thus showed that there was no basis to conclude that any alleged conflict of interest between counsel and defendant adversely affected counsel's performance with respect to the motion to withdraw the pleas. Defendant relies on cases in which the Appellate Division has held that a new attorney should have been assigned to represent the defendant on a pro se motion to withdraw a guilty plea (see Defendant's Brief at 17-19), but that reliance is misplaced for two separate reasons. First, in each of those cases, the Appellate Division presumably concluded that there was an insufficient basis for the lower court to determine that the motion to withdraw the plea was meritless, and thus that there was an insufficient basis to conclude that the conflict of interest between the attorney and the defendant did not adversely affect the attorney's performance with respect to the motion to withdraw the plea. In this case, by contrast, the trial court's review of the minutes of the plea proceeding and inquiry of defendant and defense counsel showed that the motion to withdraw the pleas was meritless and that, consequently, assignment of a new attorney was not necessary. See Porto, 16 N. Y. 3d at 102 (court properly denied motion to withdraw guilty plea and to substitute counsel where inquiry of defendant and counsel showed that defendant's vague claim that he had been coerced by counsel into accepting plea 36 offer was unavailing); People v. Stimus, 2012 N. Y. App. Div. LEXIS 7766 (4th Dep't Nov. 16, 2012) (because court determined that motion to withdraw plea was meri tless, court did not err in failing to assign new counsel to represent defendant with respect to motion); People v. Garcia, 71 A.D.3d 555, 556 (1st Dep't) ("there is no constitutional obligation to appoint new counsel for a 'routine attorney-coercion claim' whose lack of merit can be readily ascertained"), aff'd, 16 N. Y. 3d 93 (2010). Second, in any event, in each of the Appellate Division cases on which defendant relies, it appears that defense counsel affirmatively opposed the defendant's position on the motion to wi thdraw the plea. In this case, by contrast, counsel did not take such a position (see supra at 24-27). See People v. Graves, 95 A.D.3d 1034 (2d Dep't 2012) (defendant moved to withdraw plea, contending that counsel failed to adequately represent him; when counsel stated that she felt uncomfortable representing defendant at sentencing and that she could not set forth any legal ground for defendant to withdraw plea, counsel took a position adverse to him and adversely affected his right to counsel); People v. Lewis, 286 A.D.2d 934 (4th Dep't 2001) (defendant made pro se oral motion to wi thdraw his plea, apparently on basis of ineffective assistance of counsel; when counsel stated to court that he believed that he had done an "appropriate job" on defendant's 37 behalf, counsel became a witness against his client by taking a posi tion adverse to him) . Thus, defendant has not established that defense counsel had an actual or potential conflict of interest that adversely affected counsel's performance with respect to defendant's pro se motion to withdraw his guilty pleas. Consequently, the Supreme Court did not abuse its discretion by deciding that motion without first assigning a new attorney to represent defendant. Accordingly, this Court should affirm the order of the Appellate Division, which affirmed defendant's judgments of conviction. 38 CONCLUSION THE ORDER DEFENDANT'S AFFIRMED. OF THE APPELLATE DIVISION AFFIRMING JUDGMENTS OF CONVICTION SHOULD BE Dated; Brooklyn, New York November 30, 2012 :)~;t ~ LEONARD JOBLOVE DIANE R. EISNER Assistant District Attorneys of Counsel Respectfully submitted, CHARLES J. HYNES District Attorney Kings County 39