PEOPLE v. JEFFERY (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Elizabeth Foley, J., at plea;  Cassandra Mullen, J., at sentence), rendered December 13, 2016, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Kings County, for a hearing on the defendant's application to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court limited to the Supreme Court's findings with respect to the application and whether the defendant established his entitlement to the withdrawal of his plea of guilty, and the appeal is held in abeyance pending receipt of the Supreme Court's report, which shall be filed with all convenient speed.

The defendant pleaded guilty to attempted robbery in the second degree.  On the date scheduled for imposition of sentence, the defendant informed the Supreme Court that he wanted to “take this plea back,” briefly describing the reasons therefor, including that his attorney had not consulted with him adequately.  Defense counsel “disagree[d]” with the defendant's assertion regarding his representation of the defendant.  The court proceeded to impose sentence.

The defendant was not afforded a reasonable opportunity to present his contentions regarding his application to withdraw his plea of guilty and, consequently, the sentencing court was not able to make an informed determination of that application (see People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;  People v. Caputo, 163 A.D.3d 983, 82 N.Y.S.3d 457;  People v. Ghingoree, 150 A.D.3d 881, 54 N.Y.S.3d 95).  Moreover, the defendant's right to counsel was adversely affected when his attorney took a position adverse to his, and new counsel should have been assigned to represent the defendant before his application to withdraw his plea was determined (see People v. Caputo, 163 A.D.3d at 984, 82 N.Y.S.3d 457;  People v. Tzintzunfrias, 149 A.D.3d 1112, 1112, 53 N.Y.S.3d 186;  People v. Howell, 146 A.D.3d 981, 982, 45 N.Y.S.3d 552;  People v. Ferguson, 140 A.D.3d 976, 977, 32 N.Y.S.3d 516;  People v. King, 129 A.D.3d 992, 993, 12 N.Y.S.3d 151;  People v. Armstead, 126 A.D.3d 805, 806, 5 N.Y.S.3d 260;  People v. Barr, 116 A.D.3d 1061, 1062, 983 N.Y.S.2d 875;  People v. Duart, 113 A.D.3d 788, 789, 978 N.Y.S.2d 369;  People v. Vega, 88 A.D.3d 1022, 1022–1023, 931 N.Y.S.2d 883).

Accordingly, as the People correctly concede, the matter must be remitted to the Supreme Court, Kings County, for a hearing on the defendant's application to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court on the application and whether the defendant established his entitlement to the withdrawal of the plea.  We hold the appeal in abeyance pending receipt of the Supreme Court's report.  We express no opinion as to the merits of the defendant's application, and we decide no other issues at this time.

AUSTIN, J.P., HINDS–RADIX, MALTESE and CHRISTOPHER, JJ.