PEOPLE v. KOOY

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the County Court, Orange County, to decide de novo the defendant's motion to withdraw his plea of guilty, on which motion the defendant's appellate counsel shall represent him, and, if the motion is denied, to resentence the defendant.

Prior to sentencing, the defendant moved, pro se, to withdraw his plea of guilty. The defendant's right to counsel was adversely affected when his attorney, in effect, became a witness against him and took a position adverse to his ( see People v. Elting, 2 A.D.3d 455, 456; People v. Caccavale, 305 A.D.2d 695; People v. Bernard, 242 A.D.2d 387; People v. Spearman, 210 A.D.2d 268). Consequently, the County Court should not have decided the motion without first assigning the defendant new counsel ( see People v. Elting, supra; People v. Caccavale, supra; People v. Bernard, supra; People v. Spearman, supra). Accordingly, the matter is remitted to the County Court, Orange County, to decide de novo the defendant's motion to withdraw his plea of guilty, on which motion the defendant's appellate counsel shall represent him. In the event the motion is denied, the County Court shall resentence the defendant.

RITTER, J.P., H. MILLER, CRANE and COZIER, JJ., concur.