People v. Welsh

—Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: At sentencing, defendant moved pro se to withdraw his plea of guilty to the charge of attempted robbery in the first degree (see, Penal Law §§ 110.00, 160.15 [3]) on the ground that he falsely admitted at the plea allocution that he used or threatened the use of a weapon in the course of commission of that crime. Without passing upon defendant’s motion, the court asked defense counsel whether he believed that defendant entered a knowing and intelligent plea and whether counsel was convinced that the People would be able to sustain their burden of proof at trial. Defense counsel reluctantly answered both questions in the affirmative, adding that he would not have permitted defendant to plead guilty unless defendant "knew what he was doing” and "voluntarily wanted to accept the offer that the DA, the Court and I had worked out for him.” After hearing defense counsel’s opinions concerning the voluntary, knowing and intelligent nature of the plea and the strength of the People’s case, the court denied defendant’s motion.

Defendant was denied effective assistance of counsel when his attorney was compelled to take a position adverse to defendant (see, People v Rozzell, 20 NY2d 712; People v Santana, 156 AD2d 736; People v Wilson, 91 AD2d 1052), and the court should not have determined the motion without first assigning different counsel to represent defendant (see, People v Rozzell, supra; People v Wilson, 15 NY2d 634; People v Shadney, 81 AD2d 842; People v Driscoll, 30 AD2d 793). Thus, the case is held and the matter is remitted to Onondaga County Court for a de novo determination of defendant’s motion to withdraw the guilty plea (see, People v Santana, supra). (Appeal from Judgment of Onondaga County Court, Mulroy, J.—Attempted Robbery, 1st Degree.) Present—Green, J. P., Fallon, Wesley, Doerr and Boehm, JJ.