Opinion
January 24, 1983
Appeal by defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered December 17, 1979, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence. Case remitted to Criminal Term to hear and report, with all convenient speed, on defendant's motion to withdraw his plea, at which hearing new counsel shall be appointed to represent the defendant, and appeal held in abeyance in the interim. At the hearing upon defendant's application to withdraw his plea of guilty, defense counsel was interrogated at some length by the court regarding the defendant's claim of innocence. Once counsel was compelled to become a witness with respect to the merits of defendant's claim his continued representation of the defendant became untenable and the court should have assigned a new attorney (see People v. Rozzell, 20 N.Y.2d 712; People v. Wilson, 15 N.Y.2d 634; People v. Shadney, 81 A.D.2d 842; People v. Mack, 75 A.D.2d 858; People v. Driscoll, 30 A.D.2d 793). Bracken, J.P., Brown, Niehoff and Rubin, JJ., concur.