The Second Department determined defense counsel’s denial of defendant’s claim he was forced to plead quilty by defense counsel’s telling him a rejection of the plea offer would result in a much greater sentence effectively made defense counsel a witness against her client. A new attorney should have been assigned at that point to protect defendant’s right to counsel. People v Barr, 2014 NY Slip Op 02949, 2nd Dept 4-30-14
The Second Department determined defendant should have been assigned a different attorney after his attorney expressed objections to the defendant’s motion to withdraw his guilty plea:
Assigned counsel expressed his opinion that the defendant should “maintain his plea” and informed the court that he didn’t “feel that [he] could represent [the defendant] at any further proceedings.” The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant’s with respect to that branch of the defendant’s motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance … . The County Court should have assigned a different attorney to represent the defendant before it determined that branch of the defendant’s motion… . People v Duart, 2014 NY Slip Op 00373, 2nd Dept 1-22-14
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
The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing. However, the change required giving the defendant the right to withdraw the guilty plea:
Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought’ (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing” … . Nevertheless, “the court’s continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter” … .
Here, we do not find the delay between defendant’s September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … . “Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” … . Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13
In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:
County Court failed to adequately distinguish the right to appeal from those rights that are automatically forfeited upon a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence …. Nor do we find that the deficiencies in the allocution are cured by defendant’s written appeal waiver… * * *
…[D]efense counsel’s negative response to County Court’s inquiry at the outset of the hearing as to whether “there [was] any legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine the arguments that defendant sought to present to the court… . People v Pimentel, 104070, 3rd Dept 7-11-13
In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:
Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant’s sentencing. The court should have granted defendant’s plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant’s plea was induced in large part by the court’s specific representation that defendant was resolving two pending prosecutions. “It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance” …. As the dismissal of the other indictment amounted to a fundamental change in a “condition that induced [defendant’s] admission of guilt” …, he was entitled to withdraw his plea …. People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13
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
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