| People v Lou |
| 2012 NY Slip Op 03664 [95 AD3d 1035] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidLou, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County(Knopf, J.), dated June 1, 2010, which, without a hearing, denied his motion pursuant to CPL440.10 to vacate a judgment of conviction of the same court (Katz, J.), rendered May 13, 1992,convicting him of murder in the second degree, criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a hearing in accordance herewith and a new determination of thedefendant's motion thereafter.
The defendant moved pursuant to CPL 440.10 to vacate a judgment of conviction on theground that the defendant was deprived of the effective assistance of counsel. The SupremeCourt denied the motion, concluding that a portion of the defendant's claim was procedurallybarred, and that the remaining portions of the claim were without merit and did not require ahearing.
Contrary to the Supreme Court's determination, the defendant's claim is not procedurallybarred. The defendant's claim that he was deprived of the effective assistance of counsel is based,in part, on matter appearing on the record and, in part, on matter outside the record. Thus, thedefendant has presented a " 'mixed claim' " of ineffective assistance of counsel (People v Maxwell, 89 AD3d 1108,1109 [2011], quoting People vEvans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct325 [2011]). Since the defendant's claim of ineffective assistance, which must be viewed as awhole, depends, in part, upon matter that does not appear on the record, it cannot be said that"sufficient facts appear on the record of the proceedings underlying the judgment to havepermitted, upon appeal from such judgment, adequate review of the ground or issue raised uponthe motion" (CPL 440.10 [2] [c]; see People v Maxwell, 89 AD3d at 1109). Thus, thedefendant's claim is not procedurally barred, and "the CPL 440.10 proceeding is the appropriateforum for reviewing the claim of ineffectiveness in its entirety" (People v Maxwell, 89AD3d at 1109; see People v Brown, 45 NY2d 852 [1978]).
Furthermore, the Supreme Court should not have denied the defendant's motion [*2]without a hearing. In support of his claim, the defendant submittedtwo affirmations from trial counsel alleging certain facts, which, if true, may be sufficient toshow that the defense was affected by an alleged death threat. The question of whether trialcounsel's affirmations were credible should have been determined at a hearing, where credibilitycould have been assessed on a more substantial basis than on a written statement, and where amore complete record, with testimony, would allow the court to more effectively weigh theimpact of trial counsel's actions upon the defendant's case (see People v Baker, 85 AD3d 935, 936 [2011]; People vDaniels, 48 AD2d 905 [1975]).
Accordingly, the defendant's motion should not have been summarily denied, and the mattermust be remitted to the Supreme Court, Queens County, for a determination, after a hearing, ofthe defendant's motion on the merits. Dillon, J.P., Lott, Roman and Cohen, JJ., concur.[Prior Case History: 27 Misc 3d 1229(A), 2010 NY Slip Op 50961(U).]