PEOPLE v. HUNTER (2006)

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09[1] ).   We agree with defendant that he was denied effective assistance of counsel when his attorney took a position adverse to him with respect to his pro se motion at sentencing.   The record establishes that, at sentencing, defendant asserted that defense counsel had induced him to plead guilty by informing him that a suppression hearing could be conducted after the plea was entered.   In response to questioning by Supreme Court, defense counsel denied that he had so informed defendant.  “Although defense counsel had no duty to support the pro se motion of defendant ․, defense counsel ‘became a witness against [his client]’ by taking a position adverse to him, thereby depriving defendant of effective assistance of counsel” (People v. Lewis, 286 A.D.2d 934, 935, 731 N.Y.S.2d 305).   The court therefore should have assigned a different attorney before determining defendant's motion (see id.;  People v. Chrysler, 233 A.D.2d 928, 649 N.Y.S.2d 566;  People v. Kellar, 213 A.D.2d 1063, 624 N.Y.S.2d 712).   Thus, we hold the case, reserve decision, and remit the matter to Supreme Court for assignment of counsel and a de novo determination of the motion (see Lewis, 286 A.D.2d at 935, 731 N.Y.S.2d 305).

It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Supreme Court, Erie County, for further proceedings.

MEMORANDUM: