People v Rizzo

People v Rizzo 2017 NY Slip Op 00918 Decided on February 7, 2017 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 February 7, 2017
Tom, J.P., Renwick, Saxe, Feinman, Gesmer, JJ.
2991 1427/14

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

v

James Rizzo, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 20, 2015, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously modified, on the law, to remand for resentencing and for further proceedings on defendant's plea withdrawal motion in accordance with this decision.

The court and defense counsel were under the mistaken impression that defendant was proceeding pro se, with an attorney acting only as a legal advisor, at the time defendant's motion to withdraw his guilty plea was determined. Although defendant had represented himself at a suppression hearing, he had subsequently asked for the reinstatement of counsel, and he was represented by counsel when he pleaded guilty. The record does not reflect any subsequent request by defendant to return to pro se status. We have considered and rejected the People's preservation argument regarding this right-to-counsel issue. Accordingly, we remand the matter for resentencing, with the assignment of counsel and resubmission of defendant's motion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2017

CLERK