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DEFENDANT AND HIS SON WERE REPRESENTED BY THE SAME ATTORNEY; DEFENDANT ALLEGEDLY PLED GUILTY TO ATTEMPTED ASSAULT BECAUSE HE WAS TOLD HIS SON WOULD DO JAIL TIME IF DEFENDANT DID NOT ENTER THE PLEA; BECAUSE OF THE ATTORNEY’S CONFLICT OF INTEREST, DEFENDANT’S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was called to the scene of his son’s (Nicholas’s) arrest for DWI. Defendant was charged with assaulting one of the officer’s at the scene. Both defendant and his son were represented by attorney Ozman. Although defendant maintained he did not assault the officer, but rather was assaulted by the officer as he was frantically trying to find his son, defendant allegedly agreed to plead guilty to attempted assault in order to ensure a good plea deal for his son. Because defendant maintained his innocence in his interview with probation, however, the judge did not abide by the plea agreement and sentenced defendant to incarceration. Prior to sentencing, defendant had hired a new attorney and moved to withdraw his plea:

… [T]he record as a whole demonstrates that the defendant’s plea of guilty was motivated, at least in part, by coercive circumstances. The defendant averred, inter alia, that Ozman urged him to plead guilty despite his protestations of innocence because it was “very likely” that Nicholas would otherwise “face ‘jail time.'” The record also reflects that the favorable terms of Nicholas’ plea offer were conditioned upon the defendant entering a plea of guilty as part of the same plea agreement … . Moreover, the defendant demonstrated a significant possibility of a conflict of interest arising from Ozman’s joint representation of the defendant and Nicholas. The defendant’s maintenance of his innocence was at odds with Ozman obtaining a favorable plea offer for Nicholas as part of the “package deal,” which also required the defendant to enter a plea of guilty … . Thus, the record suggests that the defendant’s plea of guilty was induced by consideration other than his desire to obtain more favorable sentencing for himself, and that the defendant was deprived of representation that was “singlemindedly devoted to his best interests as required by both the Constitution of the United States and the New York State Constitution” … . People v Wentland, 2021 NY Slip Op 00578, Second Dept 2-3-21

 

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