| People v Conway |
| 2014 NY Slip Op 04306 [118 AD3d 1290] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTwan Conway, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of counsel),for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Erie County(Russell P. Buscaglia, A.J.), dated January 30, 2012. The order denied the motion ofdefendant to vacate the 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 Supreme Court, Erie County, for further proceedings inaccordance with the following memorandum: Defendant appeals from an order thatsummarily denied his motion pursuant to CPL 440.10 seeking to vacate the judgmentconvicting him upon his plea of guilty of attempted burglary in the second degree (PenalLaw §§ 110.00, 140.25 [2]). This Court previously affirmed thejudgment of conviction (Peoplev Conway, 43 AD3d 635 [2007], lv denied 9 NY3d 990 [2007]). Wenote at the outset that defendant's brief addresses only his claims concerning actualinnocence and ineffective assistance of counsel, and we thus deem abandoned hiscontention that the People committed a Brady violation (see People v Hoffler, 74 AD3d1632, 1633 n 2 [2010], lv denied 17 NY3d 859 [2011]; see also People v Dombrowski,87 AD3d 1267, 1267 [2011]).
We reject defendant's contention that he was entitled to a hearing on his claim ofactual innocence. Although the court erred in determining that a claim of actualinnocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115AD3d 12, 15 [2014]), the court properly determined that defendant's claim of actualinnocence was "belied by his admission of guilt during the plea colloquy" (People v Conde, 34 AD3d1347, 1347 [2006]; seePeople v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013],lv denied 21 NY3d 1014 [2013]). Indeed, "[t]he 'solemn act' of entering a plea,itself sufficing as a conviction, . . . should not be permitted to be used as adevice for a defendant to avoid a trial while maintaining a claim of factual innocence"(People v Plunkett, 19NY3d 400, 406 [2012], quoting People v Thomas, 53 NY2d 338, 345[1981]).
With respect to defendant's claim of ineffective assistance of counsel, however, weconclude that nonrecord facts may support defendant's contention that his trial counselunreasonably refused to investigate two potential alibi witnesses and the statements of athird [*2]party admitting to the crime, and that trialcounsel's ineffectiveness subsequently rendered defendant's plea involuntary. Wetherefore reverse the order and remit the matter to Supreme Court to conduct a hearingpursuant to CPL 440.30 (5) on defendant's claim of ineffective assistance ofcounsel.
Preliminarily, although we previously rejected on direct appeal defendant'scontention that he was denied effective assistance of counsel (see Conway, 43AD3d at 636), we note that his present contention is properly raised by way of a motionpursuant to CPL 440.10 because it concerns matters outside the record that was before uson his direct appeal (seegenerally People v Russell, 83 AD3d 1463, 1465 [2011], lv denied 17NY3d 800 [2011]). We also note that, although defendant contended in his CPL 440.10motion that his federal "Sixth Amendment right to effective assistance of counsel wasdenied," defendant's reliance upon New York jurisprudence demonstrates his intent toinvoke the greater protection afforded by the New York Constitution, and we thereforeaddress his claim of ineffective assistance of counsel in that context.
It is well settled that "[a] defendant's right to effective assistance of counsel includesdefense counsel's reasonable investigation and preparation of defense witnesses" (People v Jenkins, 84 AD3d1403, 1408 [2011], lv denied 19 NY3d 1026 [2007]; see People v Mosley, 56 AD3d1140, 1140-1141 [2008];People v Nau, 21 AD3d 568, 569 [2005]). Here, defendant's CPL 440.10 motionwas supported by the affidavits of the two alibi witnesses, and of defendant's priorattorney, who allegedly obtained a tape recording of the third-party admission. While ahearing may ultimately reveal that subsequent "counsel made reasonably diligent effortsto locate the [alibi] witness[es]" and the third party (People v Gonzalez, 25 AD3d 357, 358 [2006], lvdenied 6 NY3d 833 [2006]), or that there was a strategic reason for her failure to doso (see People v Coleman,10 AD3d 487, 488 [2004]), we "agree with defendant that his submissions 'support[] his contention that he was denied effective assistance of counsel . . . andraise[ ] a factual issue that requires a hearing' " (People v Frazier, 87 AD3d1350, 1351 [2011]).
Finally, we reject the People's contention that the allegations of fact essential tosupport defendant's motion were "conclusively refuted by unquestionable documentaryproof" (CPL 440.30 [4] [c]). Present—Centra, J.P., Fahey, Peradotto, Lindley andValentino, JJ.