| People v Maxwell |
| 2011 NY Slip Op 08778 [89 AD3d 1108] |
| November 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EugeneMaxwell, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Dowling, J.), dated July 27, 2009, which denied, without a hearing, his motion pursuant to CPL440.10 to vacate a judgment of the same court rendered July 18, 2007, convicting him of murder in thesecond degree, upon a jury verdict, and imposing sentence. Presiding Justice Prudenti has beensubstituted for former Justice Covello (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court,Kings County, for a determination of the defendant's motion on the merits.
On July 18, 2007, following a jury trial, the Supreme Court rendered a judgment convicting thedefendant of murder in the second degree and imposing sentence. While the defendant's direct appealfrom the judgment was pending, the defendant moved pursuant to CPL 440.10 to vacate the judgmenton the grounds that the People allegedly failed to disclose material evidence to the defense, that thePeople allegedly presented testimony at trial which they knew to be perjured, and that the defendantwas deprived of the effective assistance of counsel. The branch of the motion claiming ineffectiveassistance alleged, among other things, that the defendant's trial counsel failed to perform a properinvestigation, present certain expert testimony, inform the court of the People's failure to disclosematerial evidence, object to the People's knowing use of perjured testimony, use impeachmentevidence against certain witnesses, object to certain remarks made by the prosecutor during heropening statement and summation, and request that certain lesser-included offenses be submitted to thejury. In an order dated July 27, 2009, the Supreme Court summarily denied the defendant's motion,without a hearing, on the ground that all of the claims raised by the defendant's motion wereprocedurally barred pursuant to CPL 440.10 (2) (b) because sufficient facts appeared on the record topermit adequate review of the claims upon the defendant's direct appeal from the judgment. Thedefendant appeals, by permission, from the order.
A motion pursuant to CPL 440.10 to vacate a judgment of conviction must be denied when anappeal from the judgment is pending, and "sufficient facts appear on the record with respect to theground or issue raised upon the motion to permit adequate review thereof upon such an appeal" (CPL440.10 [2] [b]). Here, the Supreme Court incorrectly concluded that sufficient facts [*2]appear on the trial record to permit adequate review on direct appeal ofthe issues raised by the defendant upon his CPL 440.10 motion.
With respect to the defendant's claim that he was deprived of the effective assistance of counsel,we do not view each alleged mistake or shortcoming of his trial attorney as a separate "ground or issueraised upon the motion" (CPL 440.10 [2] [b]). Rather, the defendant's claim of ineffective assistance ofcounsel constitutes a single ground or issue upon which relief is requested. Indeed, under New Yorklaw, a claim of ineffective assistance of counsel "is ultimately concerned with the fairness of the processas a whole" (People v Benevento, 91 NY2d 708, 714 [1998]), and in reviewing such a claim,the evidence, the law, and the circumstances of the case must be " 'viewed in totality' " (id. at712, quoting People v Baldi, 54 NY2d 137, 147 [1981]).
In this case, since some of the defendant's allegations of ineffectiveness involve matters appearingon the record, while others involve matters that are outside the record, the defendant has presented a"mixed claim[ ]" of ineffective assistance (People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). In order to properly review a defendant's claim of ineffectiveassistance, a court must consider all of his or her allegations—as well as the evidence, the law,and the circumstances of the case—"in totality" (People v Baldi, 54 NY2d at 147).Thus, where, as here, a defendant presents a mixed claim of ineffective assistance that depends, in part,upon matters that do not appear on the record, it cannot be said that "sufficient facts appear on therecord with respect to the ground or issue raised upon the motion to permit adequate review thereofupon such an appeal" (CPL 440.10 [2] [b]). Therefore, such a mixed claim, presented in a CPL440.10 motion, is not procedurally barred, and the CPL 440.10 proceeding is the appropriate forumfor reviewing the claim of ineffectiveness in its entirety (see People v Elliott, 8 Misc 3d1020[A], 2005 NY Slip Op 51211[U] [2005]; see generally People v Evans, 16 NY3d at574-575 n 2; People v Brown, 45 NY2d 852 [1978]; cf. Massaro v United States,538 US 500 [2003]).
Similarly, those branches of the defendant's motion which alleged that the People failed to disclosematerial evidence to the defense and knowingly presented perjured testimony at trial were based onmatters that did not appear on the record and, therefore, were not procedurally barred under CPL440.10 (2) (b).
Thus, the defendant's motion was not procedurally barred, and it should not have been summarilydenied. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for adetermination of the defendant's motion on the merits. Prudenti, P.J., Florio, Eng and Chambers, JJ.,concur.