People v. Rosenbauer

Appeal from a judgment of Wayne County Court (Kehoe, J.), entered June 22, 2001, convicting defendant upon his plea of guilty of attempted forgery in the second degree. It is hereby ordered that the case is held, the decision is reserved, and the matter is remitted to Wayne County Court for further proceedings in accordance with the following memoran [1051] dum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted forgery in the second degree (Penal Law §§ 110.00, 170.10). Prior to sentencing, defendant made a pro se motion to withdraw his guilty plea on the ground that he had newly discovered evidence of his innocence. County Court granted a brief adjournment to allow defense counsel, who had not yet seen the newly discovered evidence, to examine the evidence with defendant. After the adjournment, defense counsel described the evidence to the court, but then also argued that it was inadmissible and possibly irrelevant. Although defense counsel had no obligation to support defendant’s motion, he deprived defendant of effective assistance of counsel when he took a position adverse to the motion (see People v Lewis, 286 AD2d 934, 934-935 [2001]; People v Betsch, 286 AD2d 887 [2001]). The court should have assigned new counsel to represent defendant before determining the motion. We therefore hold the case, reserve decision, and remit the matter to Wayne County Court for the assignment of counsel and a de novo determination of defendant’s motion to withdraw the guilty plea (see Lewis, 286 AD2d at 935; Betsch, 286 AD2d 887 [2001]). Present—Pine, J.P, Wisner, Hurlbutt, Gorski and Lawton, JJ.