| People v Hill |
| 2014 NY Slip Op 00801 [114 AD3d 1169] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Eljae Hill, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Onondaga County Court (John H.Crandall, A.J.), dated December 19, 2012. The order denied the motion of defendant tovacate a judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw and the matter is remitted to Onondaga County Court for a hearing pursuant to CPL440.30 (5).
Memorandum: We agree with defendant that County Court erred in denying withouta hearing his motion pursuant to CPL 440.10 to vacate his judgment of conviction on theground that his plea was not knowingly, voluntarily or intelligently entered because hedid not receive effective assistance of counsel. Defendant's submissions "tend[ ] tosubstantiate all the essential facts" necessary to support his claim of ineffective assistanceof counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by acourt record and are supported by other affidavits, and "it cannot be said that 'there is noreasonable possibility that [they are] true' " (People v Beach, 186 AD2d 935, 936[1992], quoting CPL 440.30 [4] [d] [ii]). Specifically, defendant averred that defensecounsel advised him that, if he pleaded guilty and cooperated with the District Attorney'soffice in its investigation of other criminal matters, he would receive a sentence of nomore than five years of incarceration. Three other people averred that defense counseltold defendant's fiancÉ, mother and father that defendant would receive "no morethan" a five-year sentence. At the time of the plea, the court informed defendant that theagreed-upon sentence was a term of incarceration of 10 years, but noted that it wouldapprove a lesser sentence if one were recommended by the People "based upon anycooperation [from defendant that the People] deem[ed] satisfactory and helpful." Afterdefendant met with representatives of the District Attorney's office to fulfill hisobligation under the cooperation agreement, the court sentenced him to a term ofincarceration of 10 years. According to defendant, defense counsel miscommunicated tohim the level of cooperation necessary for the People to recommend a lesser sentence andmisled him concerning what his sentence would be if he entered a plea to the indictment.The affidavits submitted by defendant in support of the motion raise factual issues thatrequire a hearing (see CPL 440.30 [5]; People v Frazier, 87 AD3d 1350, 1351 [2011]). [*2]Consequently, we reverse the order and remit the matter toCounty Court to conduct a hearing on defendant's motion. Present—Scudder, P.J.,Fahey, Peradotto, Lindley and Sconiers, JJ.