Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:

We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him.  While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel “may not take a position . . . that is adverse to the defendant” … .  Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … .

Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer “or that’s it.”  Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to “get away” from counsel and avoid having to go to trial with him.  Defense counsel specifically refuted defendant’s assertions and, in response to County Court’s questioning, provided detailed information as to the discussions he had with defendant about the case and his options.  In response, defendant claimed that counsel’s statements were untruthful.  Given that defense counsel took a position adverse to defendant’s claim of coercion, County Court should have assigned new counsel to pursue defendant’s motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13