| People v Parsons |
| 2014 NY Slip Op 00774 [114 AD3d 1154] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AndreParsons, Appellant. |
—[*1] Andre Parsons, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), enteredJuly 2, 2009. The order denied the CPL 440.10 motion of defendant without a hearing.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw and the matter is remitted to Monroe County Court for further proceedings inaccordance with the following memorandum: County Court erred in denying without ahearing defendant's motion seeking to vacate the judgment convicting him of, inter alia,murder in the second degree (Penal Law § 125.25 [1]) on the grounds that materialevidence adduced at his trial was false and was known by the prosecutor to be false priorto the entry of judgment and that the judgment was obtained in violation of his dueprocess rights (see CPL 440.10 [1] [c], [h]). Defendant submitted two affidavitsfrom a prosecution witness that "tend[ ] to substantiate all the essential facts" necessaryto support defendant's claims (CPL 440.30 [4] [b]). The People submitted nothing inopposition to the motion that would require or indeed allow the court to deny the motionwithout a hearing (see CPL 440.30 [2], [4]) and, therefore, the court "was notstatutorily authorized to deny defendant's motion without a hearing" (People vBaxley, 84 NY2d 208, 214 [1994], rearg dismissed 86 NY2d 886 [1995];see CPL 440.30 [5]; People v Bates, 144 AD2d 970, 970-971 [1988],lv denied 73 NY2d 919 [1989]; cf. People v Drake, 256 AD2d 1159,1160 [1998], lv denied 93 NY2d 969 [1999]; People v Stern, 226 AD2d238, 240 [1996], lv denied 88 NY2d 969 [1996], lv denied onreconsideration 88 NY2d 1072 [1996]). Present—Scudder, P.J., Fahey,Peradotto, Carni and Valentino, JJ.