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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO DEFENDANT ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA; THE MATTER WAS REMITTED FOR CONSIDERATION OF THE MOTION AFTER NEW COUNSEL IS ASSIGNED (FIRST DEPT).

The First Department sent the matter back for a ruling on defendant’s pro se motion to withdraw his plea. Defendant’s attorney took a position adverse to the defendant’s by telling the judge the motion would not succeed. New counsel must be assigned:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting, among other things, deficiencies in defense counsel’s performance with respect to the plea. The court assigned defendant new counsel, and the People opposed defendant’s motion. At the outset of the sentencing hearing, the court asked counsel if he was seeking an adjournment to supplement defendant’s pro se motion, and counsel responded: “No, I am not, and I am not adopting it because I read the People’s [opposition] and reviewed the case law on this issue and it really doesn’t seem to be worthy of asking for my client to take his plea back.” Under the circumstances, counsel took a position adverse to defendant, requiring assignment of new counsel on the motion … . People v Rivera-Santana, 2023 NY Slip Op 05101, First Dept 19-10-23

Practice Point: Here defense counsel told the judge defendant’s pro se motion to withdraw his plea was weak, thereby taking a position adverse to defendant’s. The First Department sent the matter back for assignment of new counsel and consideration of the motion.

 

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