| People v Liggins |
| 2008 NY Slip Op 09210 [56 AD3d 1265] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WilliamLiggins, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox 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 Supreme Court, Oneida County (Barry M.Donalty, A.J.), entered August 22, 2007. The order denied the motion of defendant pursuant toCPL 440.10 seeking to vacate the judgment convicting him of murder in the second degree.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andthe matter is remitted to Supreme Court, Oneida County, for a hearing on the motion inaccordance with the following memorandum: Defendant appeals from an order summarilydenying his motion pursuant to CPL 440.10 seeking to vacate the judgment convicting him, uponhis plea of guilty, of depraved indifference murder (Penal Law § 125.25 [2]). Defendantwaived his right to appeal as part of the plea agreement, and we conclude that the waiverencompasses all of the contentions raised by defendant in his CPL 440.10 motion with theexception of his contention that the plea was not voluntarily entered on the ground that hereceived ineffective assistance of counsel (see generally People v Martin, 56 AD3d 1317[2008]; People v Elardo, 52 AD3d 1272 [2008], lv denied 11 NY3d 787 [2008];People v Fairman, 38 AD3d 1346, 1347 [2007], lv denied 9 NY3d 865 [2007]).According to defendant, defense counsel failed to advise him that he had a viable defense basedon his age, which would have resulted in the disposition of the charges in Family Court asreckless manslaughter rather than as depraved indifference murder in County Court (seegenerally People v Bowman, 34 AD3d 935, 937 [2006], lv denied 8 NY3d 844[2007]; People v Nichols, 21 AD3d 1273, 1274 [2005], lv denied 6 NY3d 757[2005]), and he would not have pleaded guilty to depraved indifference murder had he known ofthat defense (see People v Bonilla, 6 AD3d 1059, 1060 [2004]). Defendant furthercontended in support of his motion that the goal of defense counsel from the outset of theprosecution was to dispose of the charges by way of a plea of guilty, and that defense counselconsequently failed to pursue a viable challenge to the denial of defendant's right to counsel andfailed to request that the court review the minutes of the grand jury proceedings. We concludethat defendant thereby raised issues of fact in support of his motion and thus that the court erredin denying his motion without conducting a hearing. We therefore reverse the order and remit thematter to Supreme Court for a hearing on defendant's motion consistent with our decision.Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green, JJ.