Opinion
KA 00-01410
February 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered February 4, 2000, convicting defendant upon his plea of guilty of attempted robbery in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, KEHOE, AND BURNS, JJ.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Defendant entered a plea of guilty to attempted robbery in the first degree (Penal Law 110.00 Penal, 160.15 Penal [4]) for the armed robbery of a cab driver. Prior to sentencing, defendant sent a letter to Supreme Court, requesting that he be permitted to withdraw his plea because he had a conflict with his attorney and because his attorney had misrepresented the maximum sentence he could receive if he were convicted after trial of robbery in the first degree. Defense counsel denied having made misrepresentations to defendant. The court told defendant that it chose to believe "your attorney over you in this case" and denied defendant's motion. As the People correctly concede, the court erred in determining the motion "without first assigning a different attorney to represent defendant" ( People v. Chrysler, 233 A.D.2d 928). "A defendant is denied effective assistance of counsel when his attorney, `either voluntarily or at the court's urging, became a witness against him'" ( People v. Chrysler, supra, at 928, quoting People v. Santana, 156 A.D.2d 736, 737; see also, People v. Pittman, 270 A.D.2d 883, 884). We thus hold the case, reserve decision and remit the matter to Supreme Court for the assignment of new counsel and a de novo determination of the motion to withdraw the guilty plea.