People v. Chaney

May 3, 2002
Versions:294 A.D.2d 931
741 N.Y.S.2d 776
2002 N.Y. App. Div. LEXIS 4538

—Appeal from a judgment of Monroe County Court (Egan, J.), entered March 10, 2000, convicting defendant upon his plea of guilty of insurance fraud in the third degree.

*932It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of insurance fraud in the third degree (Penal Law § 176.20). Prior to sentencing, defendant made a pro se motion to withdraw his plea on the ground that he was denied effective assistance of counsel. Defendant stated that defense counsel had refused to consider allowing him to call any witnesses, had not spent sufficient time with him, had not prepared an adequate defense, and had pressured him to plead guilty. Defense counsel addressed the merits of defendant’s motion, disputing defendant’s factual assertions. We conclude that defendant was denied effective assistance of counsel when his attorney took a position that was adverse to that of defendant and became a witness against him (see People v Stephens, 291 AD2d 841; People v Lewis, 286 AD2d 934, 935; People v Pittman, 270 AD2d 883, 884; People v Chrysler, 233 AD2d 928). Although defense counsel had no duty to support defendant’s pro se motion, she “could not take a position that was adverse to that of [her] client” (People v Betsch, 286 AD2d 887, 887). “The court should have assigned a different attorney to represent defendant before it determined the motion to withdraw the plea” (Pittman, 270 AD2d at 884). We therefore hold the case, reserve decision and remit the matter to Monroe County Court for the assignment of counsel and a de novo determination of the motion to withdraw the guilty plea. Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.