People v. Earp

Application by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered May 3, 2002, convicting him of aggravated criminal contempt and criminal contempt in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the defendant’s motions to withdraw his plea of guilty, on which motions the defendant’s appellate counsel shall represent him, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.

On the record presented, the Supreme Court erred in determining the defendant’s motions for leave to withdraw his plea of guilty without a hearing and after his assigned counsel adopted a position adverse to his (see People v Caccavale, 305 AD2d 695 [2003]). Accordingly, we remit the matter to the Supreme Court for a hearing on the defendant’s motions at which the defendant is to be represented by the counsel assigned to represent him on this appeal. Prudenti, P.J., Ritter, Luciano and Crane, JJ., concur.