| People v Baker |
| 2011 NY Slip Op 05291 [85 AD3d 935] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenyon Baker, Appellant. |
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Appeal by the defendant, by permission, as limited by his brief, from so much of an order ofthe County Court, Dutchess County (Dolan, J.), dated January 16, 2007, as denied, without ahearing, those branches of his motion which were pursuant to CPL 440.10 to vacate a judgmentof conviction of the same court rendered March 20, 2000, convicting him of assault in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict, on theground that he was denied the effective assistance of counsel because trial counsel did notproperly investigate his criminal history for sentencing purposes and pursuant to CPL 440.20 toset aside the sentence imposed by the same court.
Ordered that the order is reversed insofar as appealed from, on the law, and the matter isremitted to the County Court, Dutchess County, for hearings in accordance herewith and newdeterminations thereafter.
On a prior appeal to this Court, the defendant argued that he was punished for exercising hisright to a jury trial, as the sentence imposed was greater than the sentence offered as part of apotential plea agreement. The plea agreement was rejected by the County Court on the groundthat it did not take into account the defendant's correct predicate status for sentencing purposes.This Court affirmed the sentence imposed (see People v Baker, 287 AD2d 726 [2001]).
The defendant moved to set aside his sentence pursuant to CPL 440.20 on the ground that hewas incorrectly sentenced as a persistent violent felony offender based upon the mistaken beliefthat a prior 1994 conviction for attempted criminal possession of a weapon in the third degreewas a violent felony conviction (see People v Dickerson, 85 NY2d 870 [1995]; People v Caraballo, 79 AD3d 902[2010]). In addition, he moved pursuant to CPL 440.10 to vacate the judgment on the ground thathe was denied the effective assistance of counsel because trial counsel failed to properlyinvestigate his criminal history.
The defendant is not procedurally barred from arguing that he should not have beenadjudicated a persistent violent felony offender since the issue the defendant raises here isdistinct from the issue raised on his appeal from the sentence imposed on his original conviction(see People v Barnes, 60 [*2]AD3d 861 [2009]). Inaddition, the defendant's contentions required a hearing (see People v Perron, 273 AD2d549 [2000]).
Further, a hearing was required to determine the merits of the defendant's contention that hedid not receive the effective assistance of counsel because trial counsel did not properlyinvestigate his criminal history (seePeople v Mobley, 59 AD3d 741 [2009]; People v Garcia, 19 AD3d 17 [2005]; People v Perron, 273AD2d 549 [2000]). Covello, J.P., Leventhal, Lott and Miller, JJ., concur.