PEOPLE v. RIVERA SANTANA (2023)

Appeal from judgment, Supreme Court, New York County (Barry Warhit, J.), rendered June 12, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 51/212 years, held in abeyance, and the matter remitted for further proceedings on defendant's motion to withdraw his plea, with new counsel 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 (see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015];  People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013];  People v. Colson, 160 A.D.3d 579, 75 N.Y.S.3d 172 [1st Dept. 2018]).