POSITION ADVERSE TO CLIENT – Page 2 – New York Appellate Digest

The Court of Appeals considered two cases in which, after pleading guilty, the defendant made a pro se motion to withdraw the plea, claiming coercion and undue pressure by defense counsel. In both cases the sentencing judge asked for the defense attorney’s position on the pro se motion, which forced both attorneys to take a position adverse to the client’s, which, in turn, required the assignment of new counsel. The Court explained how the situation should be handled:

…[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel are challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea …, but may not take a position on the motion that is adverse to the defendant …. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion. People v Mitchell …, Nos 116, 117, CtApp, 6-11-13

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

Tag Archive for: POSITION ADVERSE TO CLIENT

Proper Procedures for Handling Pro Se Motions to Withdraw Guilty Pleas (Alleging Coercion by Defense Counsel) Explained

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

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