People v Christian

People v Christian 2013 NY Slip Op 08015 Decided on December 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2013
Tom, J.P., Saxe, DeGrasse, Richter, Clark, JJ.
11215 352/08

[*1]The People of the State of New York, Respondent,

v

Arthur Christian, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (David P. Johnson
of counsel), for respondent.

Appeal from judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered May 4, 2011, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree, and sentencing him to a term of one year, held in abeyance, and the matter remitted for further proceedings with new counsel assigned to defendant's request to withdraw his plea.

At sentencing, defendant moved to withdraw his guilty plea, and made accusations against his attorney. The attorney made a lengthy factual recitation that refuted defendant's claims. The attorney's recitation, which went beyond a mere explanation of his performance, was clearly adverse to his client's position, and the court denied the motion only after this recitation was completed. This situation created a conflict of interest requiring the assignment of new counsel to represent defendant on the motion (see People v Mitchell, 21 NY3d 964, 967 [2013]; People v Rozzell, 20 NY2d 712 [1967]). Although the attorney suggested that assignment of new counsel would be appropriate, the court directed the attorney to continue.

Accordingly, defendant is entitled to a new opportunity to move to withdraw his plea, with representation by new counsel.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2013

CLERK