| People v Mosley |
| 2008 NY Slip Op 08788 [56 AD3d 1140] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin Mosley,Appellant. (Appeal No. 1.) |
—[*1] Kevin Mosley, defendant-appellant pro se. David W. Foley, District Attorney, Mayville (Tracey A. Brunecz 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 Chautauqua County Court (John T. Ward, J.),entered May 2, 2007. The order denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting defendant of assault in the first degree (two counts) and assault in the thirddegree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toChautauqua County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10seeking to vacate the judgment convicting him after a jury trial of two counts of assault in thefirst degree (Penal Law § 120.10 [1]) and one count of assault in the third degree (§120.00 [2]). Defendant contends that County Court erred in denying the motion withoutconducting a hearing on two issues raised in his motion papers, i.e., juror misconduct andineffective assistance of counsel. We agree. With respect to juror misconduct, we conclude thatthe sworn allegations that defendant learned after the verdict was rendered that a juror failed todisclose that she was the mother of defendant's former girlfriend and that she knew defendant"required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantialright of defendant" (People vSaxton, 32 AD3d 1286, 1287 [2006]; see generally People v Rodriguez, 100NY2d 30, 35-36 [2003]). With respect to ineffective assistance of counsel, defendant submittedthe affidavit of his brother stating that defendant "is not responsible for the assault" against oneof the victims, and defendant's motion papers established that defense counsel failed to calldefendant's brother as a witness despite his willingness to testify. "[T]he failure to investigate orcall exculpatory witnesses may amount to ineffective assistance of counsel" (People v Nau, 21 AD3d 568, 569[2005]), and we conclude that the court should have conducted a hearing on the issue whetherdefendant was denied effective assistance of counsel. The court should have afforded defensecounsel an opportunity to explain his alleged failure to investigate or to call that witness "or toprovide a tactical explanation for the omission" (People v Castricone, 224 AD2d 1019,1020 [1996]). We [*2]therefore hold the case, reserve decisionand remit the matter to County Court for a hearing on those two issues. Present—Hurlbutt,J.P., Smith, Centra, Green and Pine, JJ.