| People v Frazier |
| 2011 NY Slip Op 06746 [87 AD3d 1350] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JosephFrazier, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling 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, Erie County (Penny M.Wolfgang, J.), dated August 14, 2009. The order denied defendant's CPL 440.10 motion.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andthe matter is remitted to Supreme Court, Erie County, for further proceedings in accordance withthe following memorandum: Supreme Court erred in denying without a hearing defendant'smotion pursuant to CPL 440.10 (1) (h) to vacate the judgment convicting him of three counts ofburglary in the first degree (Penal Law § 140.30 [2], [3], [4]) on the ground that he wasdenied his constitutional right to effective assistance of counsel. In support of the motion,defendant submitted his sworn statement asserting that trial counsel failed to inform him that aplea offer had been made and further asserting that he was prejudiced thereby because he wouldhave accepted the offer. In addition, defendant submitted an affidavit from the prosecutor at histrial who recalled the specific terms of the plea offer, i.e., the reduced charge to which defendantwas permitted to plead guilty and the trial court's sentencing commitment. We agree withdefendant that his submissions "support[ ] his contention that he was denied effective assistanceof counsel . . . and raise[ ] a factual issue that requires a hearing" (People v Howard, 12 AD3d 1127,1128 [2004]; see People v Sherk, 269 AD2d 755 [2000], lv denied 95 NY2d 804[2000]).
Contrary to the People's contention, the submissions of defendant in support of the motionwere not "conclusively refuted by unquestionable documentary proof" (CPL 440.30 [4] [c]). Thememorandum purportedly authored by the prosecutor at defendant's trial merely suggests thatdefendant was aware of a plea offer prior to trial but does not conclusively refute defendant'sallegations to the contrary, nor is it sworn or even signed. Moreover, we do not agree with thecourt that defendant's submissions in support of the motion consist of factual allegations "madesolely by the defendant and . . . unsupported by other affidavit or evidence" (CPL440.30 [4] [d]; cf. People v Gunney,13 AD3d 980, 983 [2004], lv denied 5 NY3d 789 [2005]; People v Spencer,272 AD2d 682, 685-686 [2000], lv denied 95 NY2d 858 [2000]). We therefore reversethe order and remit the matter to Supreme Court to conduct a hearing on defendant's motion.Present—Smith, J.P., Centra, Carni, Green and Martoche, JJ.