You are here: / / Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Ren...
,

Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Rendered Her Position Adverse to Defendant’s

The defendant made a pro se motion to withdraw his plea of guilty.  In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should not have questioned defense counsel about the merits of the motion and should have assigned new counsel to the defendant once it was clear counsel’s position was adverse to defendant’s:

Under  established principles, defense counsel has no  duty to support a pro se motion that he or she has determined to be without merit, and failing to support such a motion “does not constitute a position adverse to the client” ….   Here, after properly informing County Court that she would not be making the motion on behalf of defendant, defense counsel responded to the court’s substantive inquiry that she found no  “legal basis” for his motion. Indeed, in denying defendant’s request for new counsel or for more time to make the motion, the court reiterated that defense counsel “in her knowledge and  understanding of this case [stated] that there’s no legal basis to withdraw your plea of guilty.”  “[O]nce counsel took a position adverse to . . . defendant, the court should not have proceeded  to determine the motion  without first assigning. . . defendant new counsel” … . People v McCray, 104161, 3rd Dept, 5-30-13

 

 

You might also like
THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT).
Capacity to Sue Does Not Go to the Jurisdiction of the Court—Court Can Not Dismiss a Complaint Sua Sponte On that Ground—Capacity to Sue Must Be Raised as a Defense in the Answer or in a Pre-Answer Motion
THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT).
EXCLUSIONARY LANGUAGE IN HARASSMENT STATUTE NEED NOT BE PLED AND NEGATED IN THE CHARGING DOCUMENT; THE EXCLUSIONS ARE PROVISOS WHICH CAN BE RAISED AS DEFENSES.
DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE.
FAMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY.
EVIDENCE OF AN UNRELATED DRUG SALE WAS NOT ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE, CONVICTION REVERSED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Indictment Count Did Not State an Offense; Jurisdictional Defect Can Not Be... Relationship Between Defendant’s Act and Fatal Car Accident Too Attenuated...