| People v Henderson |
| 2017 NY Slip Op 02554 [148 AD3d 1779] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony T. Henderson, Jr., Also Known as Butter,Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedSeptember 26, 2012. The appeal was held by this Court by order entered March 25, 2016,decision was reserved and the matter was remitted to Monroe County Court for furtherproceedings (137 AD3d 1670 [2016]). The proceedings were held and completed (Douglas A.Randall, J.).
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toMonroe County Court for further proceedings in accordance with the following memorandum:We previously held this case, reserved decision, and remitted the matter for a hearing upondetermining that County Court (Geraci, J.) had erred in summarily denying defendant's motion towithdraw his guilty plea (People v Henderson, 137 AD3d 1670, 1670-1671 [2016]). Insupport of the motion, defendant had alleged that his attorney erroneously advised him before hepleaded guilty that his plea could be withdrawn at any time prior to sentencing (id. at1670). Upon remittal, defendant was represented by new counsel, and County Court (Randall, J.)heard the testimony of defendant's former attorney. Defense counsel then sought to call defendantas a witness, and the court precluded defendant's testimony and closed the hearing withoutrendering a decision on defendant's motion to withdraw his plea.
The court erred in failing to rule on defendant's motion. The intent of our prior decision wasfor the court to conduct a hearing and decide the motion by resolving any issues ofcredibility that arose at the hearing (see id. at 1671; see generally People v Stephens, 6 AD3d 1123, 1124 [2004], lvdenied 3 NY3d 663 [2004], denied upon reconsideration 3 NY3d 682 [2004]). Thecourt further erred in precluding defendant from testifying at the hearing, inasmuch as"defendant's testimony must be considered important proof bearing directly on" whether hisguilty plea was voluntarily and intelligently entered (People v Plevy, 52 NY2d 58, 65[1980]). The testimony of defendant's former attorney contradicted some of the assertions madeby defendant in support of the motion, and thus defendant's testimony was necessary for thecourt's resolution of the resulting credibility issue (see generally People v Prochilo, 41NY2d 759, 761 [1977]; People vFitzgerald, 56 AD3d 811, 813 [2008]). Under the circumstances of this case, thepreclusion of defendant's testimony deprived him of " 'a reasonable opportunity toadvance his claims [such that] an informed and prudent determination [could] berendered' " on his motion (People v Days, 125 AD3d 1508, 1509 [2015], quoting People vFrederick, 45 NY2d 520, 525 [1978]). We therefore hold the case, reserve decision, andremit the matter to County Court to reopen the hearing and rule on defendant's motion afteraffording him an opportunity to testify (see generally id.; People v Mack, 122 AD3d 1444,1445 [2014]). Present—Whalen, P.J., Centra, Lindley, Troutman and Scudder, JJ.