| People v Jones |
| 2014 NY Slip Op 02079 [115 AD3d 984] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Jones, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, JoyceSlevin, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Brennan, J.), dated October 20, 2010, which denied, without a hearing, hismotion pursuant to CPL 440.10 to vacate a judgment of the same court (Juviler, J.)rendered April 13, 1990, convicting him of manslaughter in the second degree (twocounts) and assault in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the order is reversed, on the law, and the matter is remitted to theSupreme Court, Kings County, for a hearing on the issues of ineffective assistance ofcounsel and actual innocence and a new determination thereafter of the defendant'smotion.
Since the defendant was sentenced in 1990, he has made four motions to vacate hisjudgment of conviction pursuant to CPL 440.10. On this appeal from the order denyingthe fourth motion, the defendant raises numerous claims. Some of these claims arepremised, at least in part, on his trial attorney's alleged failure to interview alibiwitnesses. The defendant asserts that he did not know how to contact these witnesses,one of whom had been his girlfriend, in the many years since he was convicted. In theiropposition papers submitted to the Supreme Court, the People argued that the defendant'sclaim of ineffective assistance of counsel should be rejected under CPL 440.10 (3) (c),because the defendant was in a position to raise it in a prior motion to vacate thejudgment of conviction, but did not. The Supreme Court declined to deny the defendant'sineffective assistance claim on that discretionary procedural ground, but, instead, deniedit on the merits.
On this appeal by the defendant, in which he contends that his allegations in supportof his ineffective assistance claim were sufficient to require a hearing, the People assert,again, that the claim should be denied under the discretionary procedural bar of CPL440.10 (3) (c). They request that we substitute our discretion for that of the SupremeCourt and deny the claim on that basis. This we may not do. Inasmuch as the applicationof CPL 440.10 (3) (c) was not determined adversely to the defendant, who is theappellant on this appeal, we have no jurisdiction to consider it (see CPL 470.15[1]; People v Concepcion,17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Harris, 93 AD3d58, 66 [2012], affd 20 NY3d 912 [2012]; People v Cephas, 90 AD3d557 [2011]). Moreover, upon considering the defendant's claim of ineffectiveassistance of counsel on the merits, the Supreme [*2]Court, under the circumstances of this case, should haveheld a hearing (see People v Fogle, 307 AD2d 299 [2003]; cf. People v Colville, 20 NY3d20, 32 [2012]).
Additionally, on remittal, the Supreme Court should hold a hearing to address thedefendant's claim that the judgment of conviction should be vacated because thedefendant is "actually innocent" of the crimes of which he was convicted (seeCPL 440.10 [1] [h]; People v Hamilton, 115 AD3d 12 [2d Dept 2014]). Aswe recognized in Hamilton, a prima facie showing of actual innocence is madeout when there is " ' "a sufficient showing of possible merit to warrant a fullerexploration" ' " by the court (People v Hamilton, 115 AD3d at 27, quoting Goldblum v Klem, 510 F3d 204, 219 [3d Cir 2007], cert denied555 US 850 [2008], quoting Bennett v United States, 119 F3d 468, 469 [7thCir 1997]). Here, the defendant made the requisite prima facie showing. Specifically, insupport of his claim of actual innocence, he submitted affidavits from alibi witnesseswho, although they had been identified before trial in a notice of alibi (see CPL250.20 [1]), had not testified at trial.
The Supreme Court properly rejected, without a hearing, the defendant's contentionthat the judgment of conviction should be vacated based upon an alleged violation ofBrady v Maryland (373 US 83 [1963]; see People v Fuentes, 12 NY3d 259, 263 [2009]).
Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearingon the issues of ineffective assistance of counsel and actual innocence and a newdetermination thereafter of the defendant's motion to vacate the judgment of conviction.Mastro, J.P., Balkin, Hall and Austin, JJ., concur.