PEOPLE v. POINTER (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered April 11, 2022, convicting him of manufacture, transport, disposition, and defacement of weapons and dangerous instruments and appliances, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Prior to sentencing, the defendant filed a pro se motion to withdraw his plea of guilty on the ground, in effect, that he was not guilty.  At the sentencing proceeding, the County Court asked defense counsel if he was going to adopt the motion and if he was aware of “any legal basis to not go forward with the sentence.”  Defense counsel responded that he was not adopting the motion, and that “other than the fact that my client wishes to file the motion and have separate counsel appointed for that purpose, I'm not aware of a legal basis.”

“It is well settled that a defendant has [the] right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” (People v. Mitchell, 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405;  see People v. Rozzell, 20 N.Y.2d 712, 713, 282 N.Y.S.2d 775, 229 N.E.2d 452).  “Counsel ‘takes a position adverse to his [or her] client,’ depriving him or her of meaningful representation, ‘when stating that the defendant's motion lacks merit’ ” (People v. Fellows, 192 A.D.3d 701, 701–702, 139 N.Y.S.3d 839, quoting People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853).

Here, contrary to the defendant's contention, defense counsel's comments in response to the County Court's inquiry did not adversely affect his right to counsel.  Defense counsel did not express an opinion as to the merits of the defendant's motion, but rather indicated that he was not aware of any impediment to moving forwarding with sentencing other than the defendant's motion (see People v. Washington, 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853;  People v. Thaxton, 191 A.D.3d 1166, 142 N.Y.S.3d 245;  cf.  People v. Rozzell, 20 N.Y.2d at 713, 282 N.Y.S.2d 775, 229 N.E.2d 452;  People v. Jeffery, 169 A.D.3d 924, 94 N.Y.S.3d 163;  People v. Hayes 140 A.D.3d 1186, 33 N.Y.S.3d 752;  People v. Fully, 90 A.D.3d 1071, 1072, 934 N.Y.S.2d 832).  Accordingly, the defendant was not denied meaningful representation on his motion to withdraw his plea of guilty.

BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur.