PEOPLE v. LOPEZ (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S. Carter, J.), rendered September 16, 2016, convicting him of robbery in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Nassau 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 as to the Supreme Court's findings with respect to whether the defendant has established his entitlement to withdrawal of the plea, 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 robbery in the third degree.  On the date of sentencing, the defendant referred to a letter he had sent to the Supreme Court.  The defendant and defense counsel conferred.  Defense counsel then stated that there was a language barrier, she had explained the case to the defendant many times, and the defendant wanted clarification of the charges again, but he was prepared to go forward with sentencing.  The defendant complained that the promised sentence was too long and that his attorney was not helping him.  Defense counsel interjected that she had explained the case to the defendant on numerous occasions through a Spanish language interpreter, and that “[t]his is all news to me.”  The defendant requested assignment of new counsel.  The court denied the defendant's pro se application, in effect, to withdraw his plea and for the assignment of new counsel, and imposed sentence.  The defendant appeals.

The defendant's right to counsel was adversely affected when his attorney took a position adverse to him with respect to his application, in effect, to withdraw his plea of guilty at sentencing (see People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405;  People v. Loaiza, 142 A.D.3d 564, 565, 36 N.Y.S.3d 487;  People v. Elting, 2 A.D.3d 455, 456, 767 N.Y.S.2d 828;  People v. Jones, 223 A.D.2d 559, 636 N.Y.S.2d 382;  People v. Santana, 156 A.D.2d 736, 550 N.Y.S.2d 356).  The Supreme Court therefore should have assigned a different attorney to represent the defendant before it determined the defendant's application to withdraw his plea of guilty (see People v. Loaiza, 142 A.D.3d at 565, 36 N.Y.S.3d 487;  People v. Illescas, 126 A.D.3d 915, 2 N.Y.S.3d 916;  People v. Armstead, 126 A.D.3d 805, 806, 5 N.Y.S.3d 260).  Accordingly, we remit the matter to the Supreme Court, Nassau 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 as to the Supreme Court's findings with respect to whether the defendant has established his entitlement to withdrawal of the plea.  The appeal will be held in abeyance pending receipt of the court's report.  At this juncture, we express no opinion as to the merits of the defendant's application and we decide no other issues (see People v. Illescas, 126 A.D.3d at 916, 2 N.Y.S.3d 916).

CHAMBERS, J.P., MALTESE, LASALLE and BARROS, JJ., concur.