People v. Bryant , 804 N.Y.S.2d 347 ( 2005 )

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered April 1, 2004, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence.

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

At a presentencing conference, the defendant moved, pro se, in effect, to reargue his written pro se motion to withdraw his plea of guilty on the ground, inter alia, of ineffective assistance of counsel. The defendant’s right to counsel was adversely affected when his attorney became a witness against him and took a position adverse to him (see People v Earp, 7 AD3d 538 [2004]; People v Caccavale, 305 AD2d 695 [2003]; People v Cruz, 244 AD2d 564 [1997]). Accordingly, we remit the matter to the Supreme Court for a hearing on the defendant’s motion, on which motion the defendant’s counsel on this appeal shall represent him. Schmidt, J.P., S. Miller, Mastro, Spolzino and Lunn, JJ., concur.