                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     105912
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

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.

      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
                               -2-                105912

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
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.
                              -3-                  105912

      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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
