People v. Smith

As conceded by the People, the defendant’s right to counsel was adversely affected when, in response to his pro se motion at sentencing to have counsel relieved and his plea withdrawn, his attorney became a witness against him. Under these circumstances, the court " 'should not have proceeded to determine the motion without first assigning the defendant new counsel’ ” (People v Humbert, 219 AD2d 674; People v Santana, 156 AD2d 736). Accordingly, the matter is remitted for a new determination at which the defendant shall be represented by new assigned counsel. At this point, we express no opinion as to the merits of the defendant’s application. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.