| People v Robert G. |
| 2011 NY Slip Op 05521 [85 AD3d 1054] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert G., Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County(Chin-Brandt, J.), dated March 11, 2010, which summarily denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court (Lebowitz, J.), rendered April 5,2000, adjudicating him a youthful offender, upon his plea of guilty to attempted robbery in thethird degree.
Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new determination of the defendant's motion on the merits.
On February 8, 2000, the defendant pleaded guilty to attempted robbery in the third degree.He was adjudicated a youthful offender on April 5, 2000, and sentenced to a five-year period ofprobation. The defendant did not appeal from that judgment. More than eight years later, in June2008, the defendant was convicted in federal court of conspiracy to distribute crack cocaine, andsentenced, as a career offender under section 4B1.1 (a) of the Federal Sentencing Guidelines, tolife imprisonment without the possibility of parole. The defendant claims that the determinationthat he was a career offender, which served to enhance the sentence imposed on his federalconviction, was predicated in part on his prior youthful offender adjudication. In September2009, the defendant moved pursuant to CPL 440.10 to vacate the judgment adjudicating him ayouthful offender, alleging that his attorney had erroneously advised him at the time of his pleathat a youthful offender adjudication could not be treated as a predicate felony conviction toenhance any future sentence. The Supreme Court summarily denied the defendant's motion,concluding that it was procedurally barred by CPL 440.10 (2) (c) because he had failed to appealfrom the judgment adjudicating him a youthful offender.
CPL 440.10 (2) (c) provides that a court must deny a defendant's motion to vacate his or herconviction where, "[a]lthough sufficient facts appear on the record of the proceedings underlyingthe judgment to have permitted, upon appeal from such judgment, adequate review of the groundor issue raised upon the motion, no such appellate review or determination occurred owing to thedefendant's unjustifiable failure to take or perfect an appeal." Here, the primary claim raised bythe defendant's motion is that the attorney who represented him at the time of his February 2000plea did not provide effective assistance because the attorney erroneously advised him that ayouthful offender adjudication could not be [*2]used to enhanceany future sentence. Since this claim is based on advice the defendant allegedly was given by hisattorney rather than facts which would appear on the record, it is of the type which may beproperly raised within the context of a motion pursuant to CPL 440.10 (see People v Mobley, 59 AD3d741 [2009]; People v Reynolds, 309 AD2d 976 [2003]; People v Perron, 273AD2d 549, 550 [2000]; see also Peoplev Pierre, 80 AD3d 441, 442 [2011], lv denied 16 NY3d 862 [2011]).Accordingly, the defendant's motion was not procedurally barred by CPL 440.10 (2) (c). Underthese circumstances, we remit the matter to the Supreme Court, Queens County, for a newdetermination of the defendant's motion on the merits, which should include a determination asto whether the allegations set forth in the defendant's affidavit are sufficient to warrant a hearingon the issue of whether his attorney was ineffective because of the attorney's alleged affirmativemisstatements about the consequences of the youthful offender adjudication (see People v White, 67 AD3d 933,934 [2009]; People v Radcliffe, 298 AD2d 533, 534 [2002]). Covello, J.P., Eng, Hall andRoman, JJ., concur.