People v. Kellar
| Decision Date | 17 March 1995 |
| Citation | 213 A.D.2d 1063,624 N.Y.S.2d 712 |
| Parties | PEOPLE of the State of New York, Respondent, v. Douglas KELLAR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Linda S. Reynolds by Robert Hallborg, Buffalo, for appellant.
Kevin M. Dillon by Michael Stebick, Buffalo, for respondent.
Before GREEN, J.P., and PINE, FALLON, CALLAHAN and DAVIS, JJ.
Prior to sentencing, defendant moved to withdraw his plea of guilty to the charge of criminal possession of a weapon in the third degree (Penal Law § 265.02[4] on the grounds that he did not possess the gun on the day in question and that he was denied effective assistance of counsel. Defendant also sought to have a new attorney assigned to represent him. The assigned attorney requested permission to withdraw as counsel. After reviewing the efforts he had made on defendant's behalf, he stated that, although defendant "has a right to his opinion that he is not satisfied with my representation, the record should reflect that the basis for [his] opinion cannot reasonably include a lack of diligent attention to this case". Defendant's attorney also stated that, contrary to defendant's assertion, he did not tell defendant to plead guilty. At sentencing, the court denied the motion.
Defendant was denied effective assistance of counsel when his attorney, "either voluntarily or at the court's urging, became a witness against him" (People v. Santana, 156 A.D.2d 736, 737, 550 N.Y.S.2d 356; see, People v. Rozzell, 20 N.Y.2d 712, 282 N.Y.S.2d 775, 229 N.E.2d 452; People v. Welsh, 207 A.D.2d 1025, 617 N.Y.S.2d 107 [decided Sept. 30, 1994]; People v. Wilson, 91 A.D.2d 1052, 458 N.Y.S.2d 655). The court should not have determined the motion of defendant to withdraw his plea of guilty without first assigning a different attorney to represent defendant (see, People v. Welsh, supra; People v. Shadney, 81 A.D.2d 842, 438 N.Y.S.2d 848; People v. Driscoll, 30 A.D.2d 793, 292 N.Y.S.2d 703). Thus, we reserve decision and remit the matter to Supreme Court for a de novo determination of the motion of defendant to withdraw his plea of guilty (see, People v. Welsh, supra ).
Case held, decision reserved and matter remitted to Supreme Court for further proceedings.
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...638, 782 N.Y.S.2d 409, 816 N.E.2d 199), nor did defense counsel thereby become a witness against defendant ( cf. People v. Kellar, 213 A.D.2d 1063, 624 N.Y.S.2d 712). Finally, the sentence is not unduly harsh or severe. It is hereby ORDERED that the judgment so appealed from is unanimously...
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... ... Assigned counsel did not argue in opposition to the defendant's motion, become a witness against him, or make any statements which were adverse to him (see, People v Wilder, 246 A.D.2d 750; cf, People v Cruz, 244 A.D.2d 564; People v Humbert, 219 A.D.2d 674; People v Kellar, 213 A.D.2d 1063). Rather, counsel attempted to clarify the circumstances surrounding the plea proceedings (see, People v Richards, 227 A.D.2d 419). He did not contradict any assertions made by the defendant, and said nothing which could have been determinative in the sentencing court's denial of ... ...
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People v. Chrysler
... ... The court should not have determined the motions without first assigning a different attorney to represent defendant (see, People v. Kellar, 213 A.D.2d 1063, 624 N.Y.S.2d 712). 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. Santana, 156 A.D.2d 736, 737, 550 N.Y.S.2d 356; see, People v. Welsh, 207 A.D.2d 1025, 617 N.Y.S.2d ... ...
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People v. Lewis, 4
... ... Thus, the court "should not have determined the motion to withdraw the plea without first assigning a different attorney to represent defendant" (People v Burton, 251 A.D.2d 1020; see, People v Chrysler, 233 A.D.2d 928; People v Kellar, 213 A.D.2d 1063). We therefore hold the case, reserve decision and remit the matter to Monroe County Court for the assignment of counsel and a de novo determination of the motion to withdraw the guilty plea (see, People v Betsch, ___ A.D.2d ___ [decided herewith]). (Appeal from Judgment of ... ...