| People v Pace |
| 2017 NY Slip Op 08137 [155 AD3d 1669] |
| November 17, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v CharlesPace, Appellant. |
Kurt D. Schultz, Sauquoit, for defendant-appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Herkimer County Court (Daniel R. King, A.J.),dated November 30, 2015. The order denied without a hearing the motion of defendant to vacatehis judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, andthe matter is remitted to Herkimer County Court for a hearing pursuant to CPL 440.30 (5).
Memorandum: We agree with defendant that County Court erred in denying without ahearing his motion pursuant to CPL 440.10 to vacate his judgment of conviction on the groundthat he did not receive effective assistance of trial counsel. In June 2007, defendant was arrestedand charged with three felonies, including criminal sexual act in the first degree (Penal Law§ 130.50 [1]), and three misdemeanors, including assault in the third degree(§ 120.00 [1]) and unlawful imprisonment in the second degree(§ 135.05). He was subsequently indicted for all six crimes. Unbeknownst to thePeople, however, defendant had already pleaded guilty to the three misdemeanor charges whenhe was initially arraigned in Town Court. Shortly before jury selection, the People learned of theearlier disposition of the misdemeanor charges by plea after "obtaining the lower courtpaperwork." The court returned the misdemeanor charges to Town Court for sentencing andproceeded to trial against defendant on the felonies, without any objection by defense counselthat such separate prosecutions violated the double jeopardy provisions of CPL 40.20.
After defendant was convicted of the three felonies, he filed a direct appeal with this Courtthat raised numerous contentions, including the contention that he was denied effectiveassistance of counsel. We specifically noted in our decision affirming the judgment, however,that defendant did not contend that defense counsel was ineffective in failing to seek dismissal ofthe felony charges under CPL 40.20 (People v Pace, 70 AD3d 1364, 1366 [4th Dept 2010], lvdenied 14 NY3d 891 [2010]). Defendant thereafter filed the instant CPL 440.10 motion,raising that very contention. The court denied the motion without a hearing on the ground thatdefendant had unjustifiably failed to raise the contention on his direct appeal. We nowreverse.
It is well settled that denial of a CPL 440.10 motion is required when a defendantunjustifiably fails to raise a ground or issue on a direct appeal and "sufficient facts appear[ed] onthe record of the proceedings underlying the judgment to have permitted, upon appeal from suchjudgment, adequate review of the ground or issue raised upon the motion" (CPL 440.10 [2] [c]).There is no dispute that defendant, on direct appeal, did not raise the contention that his trialcounsel was ineffective in failing to seek dismissal of the felony charges under CPL 40.20. Thequestion is whether defendant could have raised that contention on direct appeal and thuswhether his failure to do so was unjustifiable.
[*2] In order to succeed on a claim of ineffective assistance of trial counsel based on a failureto make a particular motion or objection, a defendant on a direct appeal or a CPL article 440motion must demonstrate that the motion or objection, if made, would have been successful (see People v Peterson, 19 AD3d1015, 1015 [4th Dept 2005], lv denied 6 NY3d 851 [2006]; see also People v Caban, 5 NY3d143, 152 [2005]). Thus, defendant, in order to establish ineffective assistance of trial counselon the direct appeal, would have been required to establish not only that trial counsel failed toseek dismissal under CPL 40.20, which is undisputed, but also that such a motion, if made,would have been successful. It is the latter factor that controls our analysis.
The People do not dispute that defendant was separately prosecuted for various offensesbased upon the same act or criminal transaction, which is generally prohibited by CPL 40.20 (2),and defendant does not dispute that the occurrence of separate prosecutions was evident from therecord on the direct appeal. Here, however, a determination whether a motion for dismissal underCPL 40.20 would have been successful could not have been made on the direct appeal andcannot be made on this appeal from the order denying the CPL article 440 motion. Resolution ofthat issue is dependent on a review of matters that were outside the record on direct appeal andare outside the record on this appeal. Moreover, considering the allegation that the "local courtrecord is now missing," we conclude that defendant did not fail in his "obligation to prepare aproper record" (People v Olivo, 52 NY2d 309, 320 [1981], rearg denied 53 NY2d797 [1981]).
As the People correctly contend, separate prosecutions are permitted under certaincircumstances. Under subdivision CPL 40.20 (2) (a), separate prosecutions are permitted where"[t]he offenses as defined have substantially different elements and the actsestablishing one offense are in the main clearly distinguishable from those establishing the other"(emphasis added). Under subdivision (2) (b), separate prosecutions are permitted when "[e]ach ofthe offenses as defined contains an element which is not an element of the other, and thestatutory provisions defining such offenses are designed to prevent very different kinds of harmor evil" (emphasis added). If either exception applies, then the motion for dismissal underCPL 40.20, if made, would not have been successful and trial counsel was not ineffective infailing to make such a motion.
Addressing first CPL 40.20 (2) (b), we conclude that the record on direct appeal wassufficient to determine whether that exception applied inasmuch as the applicability of thatexception is based solely on the statutory definition of the offenses and the harm or evil thoseprovisions were designed to prevent. Thus, the absence of the "lower court paperwork" isirrelevant to the analysis. In our view, defendant's contention, i.e., that CPL 40.20 (2) (b) wouldnot have permitted the separate prosecutions, has merit. Even if the two misdemeanors of assaultand unlawful imprisonment, as defined, contained different elements from the three felonies, "theevil to be inhibited—the prevalence of violence . . .—is common to[all five offenses] . . . [, and those five] offenses represent an aspect, to a varyingdegree of culpability, of deterring and punishing behavior likely to result in injury. . . It is significant in this regard to note that [those five offenses] gr[e]w out of actsnearly simultaneous in execution" (People v Fernandez, 43 AD2d 83, 91 [2d Dept 1973]).We need not resolve the applicability of subdivision (2) (b), however, because even if separateprosecutions were not permitted under subdivision 40.20 (2) (b), defendant must also establishthat separate prosecutions were not permitted under CPL 40.20 (2) (a) in order to establish that amotion to dismiss the felonies under CPL 40.20, if made, would have been successful.
Unlike subdivision (2) (b), the determination whether separate prosecutions were permittedunder subdivision (2) (a) could not have been made on the direct appeal because the "lower courtpaperwork" was not included in the record, and a review of the charging documents for the priorand current prosecutions is necessary to determine if acts establishing the misdemeanor offenseswere "in the main clearly distinguishable from those establishing the [felony offenses]" (CPL40.20 [2] [a]; see generally Matter of Abraham v Justices of N.Y. Supreme Ct. of BronxCounty, 37 NY2d 560, 567 [1975]).
Inasmuch as the record on the direct appeal lacked the lower court paperwork, the record ondirect appeal was insufficient to determine whether a motion to dismiss the felony counts underCPL 40.20, if made, would have been successful. We thus conclude that defendant did not"unjustifiabl[y]" fail to raise the contention on direct appeal and that the court erred in summarily[*3]dismissing the CPL 440.10 motion on that ground (CPL440.10 [2] [c]). We therefore reverse the order and remit the matter to County Court to conduct ahearing on defendant's motion. Present—Whalen, P.J., Smith, Lindley, NeMoyer andCurran, JJ.