| People v Hernandez |
| 2015 NY Slip Op 01470 [125 AD3d 885] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Javier Hernandez, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the County Court, SuffolkCounty (Kahn, J.), dated January 7, 2013, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court rendered May 12, 2008,convicting him of criminal sexual act in the first degree (two counts), attempted rape inthe first degree, sexual abuse in the first degree, and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendant's motion pursuant to CPL 440.10 which was tovacate the judgment rendered May 12, 2008, made on the ground that he was deprived ofthe effective assistance of counsel due to his trial counsel's alleged failure to consult orhire an expert witness; as so modified, the order is affirmed, and the matter is remitted tothe County Court, Suffolk County, for a new determination, on the merits, of that branchof the defendant's motion.
The defendant was convicted, upon a jury verdict, of two counts of criminal sexualact in the first degree, attempted rape in the first degree, sexual abuse in the first degree,and endangering the welfare of a child (see People v Hernandez, 88 AD3d 907 [2011]). This Courtaffirmed the judgment of conviction (see id.). The Court of Appeals denied leaveto appeal (see People v Hernandez, 18 NY3d 859 [2011]). Thereafter, thedefendant, appearing pro se, moved pursuant to CPL 440.10 to vacate the judgment ofconviction. The defendant argued, inter alia, that he was deprived of the effectiveassistance of counsel due to his trial counsel's failure to consult or hire an expert witnesson the issue of child sexual abuse syndrome so as to refute testimony offered by thePeople at the trial.
The County Court denied, without a hearing, the defendant's motion pursuant to CPL440.10. The County Court determined that, to the extent that the defendant's claim ofineffective assistance of counsel was based on his trial counsel's alleged failure to consultor hire an expert [*2]witness, it was procedurally barredby CPL 440.10 (2) (c). A Justice of this Court granted the defendant leave to appeal fromthe order denying his motion (see People v Hernandez, 2013 NY Slip Op79069[U] [2d Dept 2013]). We now remit the matter to the County Court, SuffolkCounty, for a new determination, on the merits, of that branch of the defendant's motionwhich was to vacate the judgment of conviction, made on the ground that the defendantwas deprived of the effective assistance of counsel due to his trial counsel's allegedfailure to consult or hire an expert witness.
CPL 440.10 (2) (c) provides, in part, that a court must deny a motion to vacate ajudgment of conviction when, "[a]lthough sufficient facts appear on the record of theproceedings underlying the judgment to have permitted, upon appeal from suchjudgment, adequate review of the ground or issue raised upon the motion, no suchappellate review or determination occurred owing to" the defendant's "unjustifiablefailure to raise such ground or issue upon an appeal actually perfected by him [orher]."
In this case, although the record of the proceedings underlying the judgment revealsthat the defense called no expert witness to testify on the issue of child sexual abusesyndrome, trial counsel's alleged failure to consult or hire such a witness does not appearin the record. Where, as here, the defendant's claim of ineffective assistance of counsel ispremised on his attorney's failure to retain and call an expert witness, the claim involvesmatter dehors the record and, thus, is not properly raised on a direct appeal from thejudgment (see People vStaropoli, 49 AD3d 568, 568-569 [2008]; see also People v Miller, 81 AD3d 854, 855 [2011]; People v Gillespie, 36 AD3d626, 627 [2007]). Consequently, the defendant's contention that his trial counsel wasineffective in failing to consult or hire an expert witness on the issue of child sexualabuse syndrome, so as to refute the testimony offered by the People at trial, was of thetype that properly may be raised in the context of a motion pursuant to CPL 440.10.Accordingly, that branch of the defendant's motion was not procedurally barred by CPL440.10 (2) (c). Under these circumstances, we remit the matter to the County Court,Suffolk County, for a new determination, on the merits, of that branch of the defendant'smotion which was to vacate the judgment of conviction, made on the ground that thedefendant was deprived of the effective assistance of counsel due to his trial counsel'salleged failure to consult or hire an expert witness on the issue of child sexual abusesyndrome (see People v RobertG., 85 AD3d 1054, 1055 [2011]). This new determination on the merits shouldinclude a determination as to whether the allegations set forth in the defendant's affidavitare sufficient to warrant a hearing on the issue of whether his trial counsel wasineffective for his alleged failure to consult or hire an expert witness (see id. at1055).
The defendant's remaining contention is without merit. Dillon, J.P., Hinds-Radix,Maltese and Barros, JJ., concur.