People v. Russ, 118 A.D.3d 1039 (N.Y. App. Div. 2014). · Go Syfert
People v. Russ, 118 A.D.3d 1039 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
7 citation events (7 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Maldonado (nyappdiv, 2020-05-21)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Maldonado
N.Y. App. Div. · 2020 · confidence medium
Accordingly, we vacate defendant's sentence and remit the matter to Supreme Court for defendant to receive new counsel and for further proceedings not inconsistent with this decision ( see People v Russ , 118 AD3d 1039, 1040 [2014]; People v McCray , 106 AD3d at 1375 ).
discussed Cited as authority (rule) People v. Faulkner
N.Y. App. Div. · 2019 · confidence medium
Defense counsel's repeated assertions that there was no basis for defendant's motion and that his plea had been entered knowingly and voluntarily created a conflict of interest between him and defendant, thereby giving rise to County Court's obligation to assign new counsel before deciding the motion ( see People v Oliver , 158 AD3d at 991; People v Prater , 127 AD3d 1249, 1250 [2015]; People v Russ , 118 AD3d 1039, 1040 [2014]).
discussed Cited as authority (rule) People v. Oliver
N.Y. App. Div. · 2018 · confidence medium
Accordingly, once defense counsel took a position that was adverse to defendant, County Court should have assigned a new attorney to represent him on his motion to withdraw his plea ( see People v Mitchell , 21 NY3d at 967 ; People v Prater , 127 AD3d at 1250 ; People v Russ , 118 AD3d 1039, 1040 [2014]; People v McCray , 106 AD3d at 1375 ).
discussed Cited as authority (rule) People v. Tzintzunfrias
N.Y. App. Div. · 2017 · confidence medium
Under the circumstances, we deem it appropriate to remit the matter to the Supreme Court, Richmond County, for fur *1113 ther proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant should be appointed new counsel (see People v Mitchell, 21 NY3d 964, 967 [2013]; People v Prater, 127 AD3d 1249, 1250 [2015]; People v Russ, 118 AD3d 1039, 1040 [2014]), and, thereafter, a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of the plea (see People v Howell, 146 AD3d 981, 982 [2017]).
discussed Cited as authority (rule) People v. Prater
N.Y. App. Div. · 2015 · confidence medium
While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client (see People v Hutchinson, 57 AD3d 1013 , 1014-1015 [2008], lv denied 12 NY3d 817 [2009]), make remarks that “affirmatively undermine” a defendant’s arguments (see People v Pimentel, 108 AD3d 861, 863 [2013], lv denied 21 NY3d 1076 [2013]), or otherwise “take a position . . . that is adverse to the defendant” (People v Russ, 118 AD3d 1039, 1040 [2014] [internal quotation marks, emphasis and citations omitted].
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Rondy Russ, Also Known as Ski
Appellate Division of the Supreme Court of the State of New York.
Jun 5, 2014.
118 A.D.3d 1039
Devine, Garry, Lahtinen, McCarthy, Peters.
Cited by 5 opinions  |  Published
Peters, PJ.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered June 19, 2012 in Ulster County, convicting defendant upon his plea of guilty of the crime of conspiracy in the second degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to the crime of conspiracy in the second degree stemming from the shooting death of Charles King Jr. Prior to sentencing, defendant, pro se, moved to withdraw his plea, claiming that he was innocent and had involuntarily entered a plea of guilty due to defense counsel’s misrepresentations and coercion. The matter was adjourned for defendant to obtain new counsel. Thereafter, upon questioning by Supreme Court regarding the voluntariness of defendant’s plea, his new counsel affirmatively stated that the plea allocution reflects that defendant’s plea was voluntary. Supreme Court denied defendant’s motion and sentenced[*1040] him as a second felony offender in accordance with the plea agreement. This appeal ensued.

We agree with defendant’s contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. “While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel ‘may not take a position . . . that is adverse to the defendant’ ” (People v Zaorski, 111 AD3d 1054, 1054 [2013] [emphasis added and citation omitted], quoting People v Mitchell, 21 NY3d 964, 967 [2013]). Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel “affirmatively undermined arguments [that defendant] wished the court to review” (People v McCray, 106 AD3d 1374, 1375 [2013] [internal quotation marks and citation omitted]; see People v Berroa, 99 NY2d 134, 139-140 [2002]; People v Zaorski, 111 AD3d at 1055). Accordingly, the matter must be remitted for reconsideration of defendant’s motion, for which he must be represented by new counsel.

In light of this determination, we need not address defendant’s remaining contentions.

Lahtinen, McCarthy, Garry and Devine, JJ., concur.

Ordered the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Ulster County for assignment of new counsel and reconsideration of defendant’s motion to withdraw his guilty plea; and, as so modified, affirmed.