People v Prater

People v Prater 2015 NY Slip Op 02806 Decided on April 2, 2015 Appellate Division, Third 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 and Entered: April 2, 2015
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

LAMAR PRATER, Appellant.

Calendar Date: February 11, 2015
Before: Peters, P.J., Garry, Rose and Lynch, JJ.

Carolyn B. George, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Lynch, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered May 6, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. Defendant thereafter moved pro se to withdraw his plea, asserting, among other things, that counsel had pressured him into accepting the plea and that it was involuntary. After reviewing the plea minutes and hearing from defense counsel, County Court denied the motion and sentenced defendant, in accordance with the plea agreement, to five years in prison to be followed by five years of postrelease

supervision. Defendant appeals.

In our view, the judgment must be modified. "It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964, 966 [2013] [citations omitted]). While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client (see People v Hutchinson, 57 AD3d 1013, 1014-1015, [2008], lv denied 12 NY3d 817 [2009]), make remarks that "affirmatively undermine" a defendant's arguments (see People v Pimentel, 108 AD3d 861, 863 [2013], lv denied 21 NY3d 1076 [2013]), or otherwise "take a position that is adverse to the defendant" (People v Russ, 118 AD3d 1039, 1040 [2014] [internal quotation marks and citations omitted]. Here, when asked to respond to defendant's pro se motion, counsel advised that, in his opinion, "[County] Court thoroughly explained everything to [*2]him . . ., [defendant had] no questions concerning the plea" and that there was no way that he could see that defendant "pleaded without knowing what he was pleading to." In our view, because counsel's opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant (see People v Mitchell, 21 NY3d at 967; People v Russ, 118 AD3d at 1040; People v McCray, 106 AD3d 1374, 1375 [2013]).

In light of this determination, we need not address defendant's remaining contentions.

Peters, P.J., Garry and Rose, JJ., concur.

ORDERED the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Schenectady County for assignment of new counsel and reconsideration of defendant's motion to withdraw his plea; and, as so modified, affirmed.