Opinion
March 18, 1996
Appeal from the County Court, Nassau County (Boklan, J.).
Ordered that the motion is granted, Saul Roth is relieved as attorney for the defendant and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Adrienne Flipse, 194 Old Country Road, Mineola, N Y, 11501, is assigned to represent the defendant at the hearing in accordance herewith and to file any supplemental briefs; and it is further,
Ordered that the matter is remitted to the County Court, Nassau County, to hear and report on the defendant's motion to withdraw his plea of guilty, on which motion the defendant shall be represented by new assigned counsel, and the appeal is held in abeyance in the interim.
As conceded by the People, the defendant's right to counsel was adversely affected when, in response to his pro se motion at sentencing to have counsel relieved and his plea withdrawn, his attorney became a witness against him. Under these circumstances, the court "`should not have proceeded to determine the motion without first assigning the defendant new counsel'" (People v Humbert, 219 A.D.2d 674; People v Santana, 156 A.D.2d 736). Accordingly, the matter is remitted for a new determination at which the defendant shall be represented by new assigned counsel. At this point, we express no opinion as to the merits of the defendant's application. Balletta, J.P., O'Brien, Ritter, Pizzuto and Altman, JJ., concur.