People v. Stephens , 737 N.Y.S.2d 889 ( 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.

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, 160.15 [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 AD2d 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 AD2d 736, 737; see also, People v Pittman, 270 AD2d 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. Present — Pigott, Jr., P.J., Hayes, Hurlbutt, Kehoe and Burns, JJ.