People v Torres

People v Torres 2018 NY Slip Op 01550 Decided on March 8, 2018 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 March 8, 2018
Renwick, J.P., Richter, Andrias, Kapnick, Kahn, JJ.
5935 2802/13

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

v

Norberto Torres, Defendant-Appellant.

Rosemary Herbert, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.

Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered December 17, 2014, as amended January 21, 2015, convicting defendant, upon his plea of guilty, of criminal sexual act in the first degree, attempted criminal sexual act in the first degree and sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 25 years, unanimously affirmed.

The court was not obligated to appoint new counsel for defendant at sentencing in connection with his motion to withdraw his guilty plea. The remarks by defense counsel, which preceded defendant's oral motion, that defendant contends were adverse to his motion did not reach the level of creating a conflict of interest. When counsel's conduct is challenged in a plea withdrawal motion, "defense counsel should be afforded the opportunity to explain his performance with respect to the plea, but may not take a position on the motion that is adverse to the defendant" (People v Mitchell, 21 NY3d 964, 967 [2013] [citation omitted]). Furthermore, through its own familiarity with the case, the court readily recognized the motions's lack of merit, independently of anything said by counsel.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2018

CLERK