

People v Hayes (2016 NY Slip Op 05168)





People v Hayes


2016 NY Slip Op 05168


Decided on June 29, 2016


Appellate Division, Second 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 June 29, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
ROBERT J. MILLER, JJ.


2013-01912
 (Ind. No. 12-00199)

[*1]The People of the State of New York, respondent, 
vRalphie Hayes, appellant.


Warren S. Hecht, Forest Hills, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered January 18, 2013, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the matter is remitted to the County Court, Orange County, for further proceedings on the defendant's motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court limited to its findings with respect to the motion and whether the defendant established his entitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the County Court's report, which shall be filed with all convenient speed.
Prior to sentencing, the defendant moved to withdraw his plea of guilty. As the People correctly concede, the defendant's right to counsel was adversely affected when his attorney took a position adverse to him with respect to that motion (see People v Mitchell, 21 NY3d 964, 966-967; People v Illescas, 126 AD3d 915, 916; People v Bedoya, 53 AD3d 621, 621; People v Elting, 2 AD3d 455, 456). The County Court should have assigned a different attorney to represent the defendant before it determined the defendant's motion (see People v Duart, 113 AD3d 788, 789; People v Santana, 156 AD2d 736, 737). Accordingly, we remit the matter to the County Court, Orange County, for further proceedings on the defendant's motion to withdraw his plea of guilty, for which the defendant should be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of the plea. The appeal will be held in abeyance pending receipt of the County Court's report. We express no opinion as to the merits of the defendant's motion, and we decide no other issues at this time.
MASTRO, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


