| People v Lard |
| 2007 NY Slip Op 08552 [45 AD3d 1331] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lonnie Lard,Also Known as Lonnie Anthony, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Steven Meyer of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Erie County Court (Sheila A. DiTullio, J.),entered May 5, 2006. The order denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting defendant of attempted assault in the first degree and criminal possession ofa weapon in the third degree.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law and the matter is remitted to Erie County Court for a hearing pursuant to CPL440.30 (5) in accordance with the following memorandum: We granted defendant leave to appealfrom the order denying his CPL article 440 motion to vacate the judgment convicting him uponhis plea of guilty of attempted assault in the first degree (Penal Law §§ 110.00,120.10 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [4]).Defendant contends that he is entitled to vacatur of the judgment pursuant to CPL 440.10 (1) (h)because defense counsel failed to file a timely notice of appeal and thus was ineffective. Wereject that contention. Section 440.10 (1) (h) addresses violations of constitutional rights inobtaining a judgment, not violations occurring after entry of the judgment (see CPL 1.20[15]). The proper procedural vehicle for seeking relief based on that alleged ineffective assistanceof counsel was a motion for an extension of time for taking the appeal under CPL 460.30 (seePeople v McDonough, 87 AD2d 727 [1982]; see generally People v Corso, 40 NY2d578, 580-581 [1976]), but the time period in which to move for an extension has expired(see CPL 460.30 [1]). We further reject the contention of defendant that the allegedineffective assistance of counsel deprived him of his opportunity to raise on appeal an issueconcerning the voluntariness of his plea. That contention concerns the same allegedpostjudgment ineffective assistance and thus suffers from the same infirmity.
We conclude, however, that defendant's contention pursuant to CPL 440.10 (1) (a), i.e., thatthe superior court information was jurisdictionally defective, may have merit (see People vMenchetti, 76 NY2d 473, 477 [1990]). County Court rejected that contention on the groundthat sufficient facts appeared on the face of the record to have permitted appellate review of thecontention, thus requiring denial of the motion pursuant to CPL 440.10 (2) (c). That paragraph[*2]of CPL 440.10, however, is premised on "the defendant'sunjustifiable failure to take or perfect an appeal during the prescribed period or to his [or her]failure to raise such ground or issue" upon a perfected appeal. In view of the averments ofdefendant that he timely instructed defense counsel to take an appeal from the initial judgment,that defense counsel failed to do so, and that defendant did not learn of such failure until anappeal was pending on the subsequent resentence, we conclude that a hearing on whether thefailure to take a timely appeal was justifiable is required pursuant to CPL 440.30 (5).Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ.