PEOPLE v. JONES (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Derek P. Champagne, J.), rendered January 24, 2020, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, an incarcerated individual, was charged by indictment with promoting prison contraband in the first degree and assault in the second degree.  In satisfaction thereof, defendant pleaded guilty to attempted promoting prison contraband in the first degree with the understanding that he would be sentenced, as a second felony offender, to a prison term of 11/212 to 3 years to be served consecutively to the prison term he was then serving.  The plea agreement also required defendant to waive his right to appeal.  At sentencing, defendant made a pro se motion to withdraw his plea, asserting that he received ineffective assistance of counsel and seeking new counsel.  County Court denied the motion without a hearing and imposed the agreed-upon sentence.  Defendant appeals.

We affirm.  Defendant contends that, in the context of his pro se motion to withdraw his plea, counsel took a position adverse to his interests and County Court erred in failing to appoint new counsel to pursue the motion.  “It is well settled that a defendant has a 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 [2013] [citations omitted];  see People v. Phillip, 200 A.D.3d 1108, 1109, 157 N.Y.S.3d 312 [3d Dept. 2021]).  “While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client, make remarks that affirmatively undermine a defendant's arguments, or otherwise take a position that is adverse to the defendant” (People v. Oliver, 158 A.D.3d 990, 991, 71 N.Y.S.3d 692 [3d Dept. 2018] [internal quotation marks and citations omitted];  see People v. Thaxton, 191 A.D.3d 1166, 1167, 142 N.Y.S.3d 245 [3d Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 [2021]).

Defendant argues that counsel's recommendation, after informing County Court of defendant's pro se motion to dismiss the plea based upon the ineffective assistance of counsel, that the court proceed with sentencing pursuant to the terms of the plea agreement, amounted to taking an adverse position to defendant's interests.  The record reflects, however, that counsel made that recommendation after the court advised him that defendant's motion was denied and asked counsel whether he had any remarks he wished to make concerning sentencing.  In our view, counsel's statement regarding sentencing in response to the court's inquiry did not “affirmatively undermine[ ] defendant's assertions or amount[ ] to an adverse position against defendant so as to create an actual conflict” (People v. Thaxton, 191 A.D.3d at 1168, 142 N.Y.S.3d 245;  see People v. Tyler, 130 A.D.3d 1383, 1385, 14 N.Y.S.3d 570 [3d Dept. 2015]).  Although the court subsequently gave defendant an opportunity to support his motion before again denying it, our review of the record reveals no instance where counsel took an adverse position to defendant's interests.  Accordingly, the court was under no obligation to assign substitute counsel prior to deciding the motion (see People v. Thaxton, 191 A.D.3d at 1168, 142 N.Y.S.3d 245;  People v. Tyler, 130 A.D.3d at 1385, 14 N.Y.S.3d 570;  People v. Morgan, 114 A.D.3d 995, 996, 979 N.Y.S.2d 873 [3d Dept. 2014], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014]).

ORDERED that the judgment is affirmed.

McShan, J.

Clark, J.P., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.