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The PEOPLE of the State of New York, Respondent, v. Wesley KIRKLAND, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: SCUDDER, P.J., HURLBUTT, SMITH, AND CENTRA, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[3] ). We agree with defendant that he was deprived of effective assistance of counsel inasmuch as his attorney took a position adverse to him when defendant moved pro se for the assignment of new counsel and to withdraw his guilty plea. Although defense counsel had no duty to support the motions, he became a witness against defendant by taking a position adverse to him, thereby depriving defendant of effective assistance of counsel (see People v. Hunter, 35 A.D.3d 1228, 1228, 826 N.Y.S.2d 867; People v. Lewis, 286 A.D.2d 934, 934, 731 N.Y.S.2d 305). County Court “should not have determined the motion[ ] [to withdraw the plea] without first assigning a different attorney to represent defendant” (People v. Chrysler, 233 A.D.2d 928, 928, 649 N.Y.S.2d 566). We therefore hold the case, reserve decision, and remit the matter to County Court for the assignment of counsel and a de novo determination of the motion to withdraw the guilty plea (see People v. Chaney, 294 A.D.2d 931, 741 N.Y.S.2d 776).

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