| People v Pendergraph |
| 2019 NY Slip Op 02212 [170 AD3d 1630] |
| March 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Glenn A. Pendergraph, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert 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 Onondaga County Court (Gordon J. Cuffy,A.J.), entered January 23, 2018. The order denied defendant's motion to vacate a judgment ofconviction 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 Onondaga County Court for a hearing pursuant to CPL 440.30 (5) inaccordance with the following memorandum: Defendant appeals from an order summarilydenying his motion pursuant to CPL 440.10 to vacate the judgment convicting him of murder inthe second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon inthe second degree (§ 265.03 [former (2)]). Defendant contends that he was deprivedof a fair trial because the prosecutor erroneously said on summation that a witness received nobenefit for cooperating with the prosecution, and that he was denied effective assistance ofcounsel because defense counsel failed to object to the prosecutor's comment and becausedefense counsel told the jury that defendant would testify without first discussing that optionwith defendant.
Although on direct appeal we rejected defendant's contention that he was denied effectiveassistance of counsel (People vPendergraph, 150 AD3d 1703, 1703-1704 [4th Dept 2017], lv denied 29 NY3d1132 [2017]), we note that his present contentions are properly raised by way of a CPL 440.10motion because they concern matters outside the record that was before us on his direct appeal(see People v Conway, 118 AD3d1290, 1291 [4th Dept 2014]; seegenerally People v Russell, 83 AD3d 1463, 1465 [4th Dept 2011], lv denied 17NY3d 800 [2011]). We also conclude that CPL 440.10 (3) (c) does not bar defendant'scontentions. Although defendant made a prior CPL 440.10 motion, at that time defendant wasnot "in a position adequately to raise the ground or issue underlying the present motion" (CPL440.10 [3] [c]) and, in any event, we have the power to exercise our discretion to reach the meritsof defendant's contention (see People vReed, 159 AD3d 1551, 1552 [4th Dept 2018]; People v Pett, 148 AD3d 1524, 1524 [4th Dept 2017]).
With respect to the merits, we conclude that defendant is not entitled to a hearing regardinghis contentions that the prosecutor committed misconduct during summation by saying that awitness received no benefit by cooperating with the prosecution and that counsel was ineffectiveby not objecting thereto. The evidence submitted in support of the CPL 440.10 motionestablishes that, in consideration for his cooperation with defendant's prosecution, the witnessreceived the minimum sentence as part of a separate plea deal in another county. Thus, theprosecutor incorrectly stated on summation that the witness received no benefit for cooperating.Nevertheless, we conclude that defendant is not entitled to a hearing on that issue because thatone comment was not so egregious as to deprive defendant of a fair trial (see People v Hendrix, 132 AD3d1348, 1348 [4th Dept 2015], lv denied 26 NY3d 1145 [2016]; People v Lyon, 77 AD3d 1338,1339 [4th Dept 2010], lv denied 15 NY3d 954 [2010]). Thus, defense counsel's failure toobject thereto did not deprive defendant of effective assistance (see Hendrix, 132 AD3dat 1348).
To the extent defendant contends in his CPL 440.10 motion that counsel was ineffective fornot objecting to other comments made by the prosecutor on summation, we conclude that CountyCourt properly denied the motion because this contention is based on matters in the record thatwere raised on direct appeal. Defendant is therefore not entitled to a hearing on that allegation ofineffective assistance of counsel (see CPL 440.10 [2] [a]; People v McCullough, 144 AD3d1526, 1526-1527 [4th Dept 2016], lv denied 29 NY3d 999 [2017]).
We further conclude, however, that defendant is entitled to a hearing with respect to whethercounsel was ineffective in telling the jury that defendant would testify at trial. In support of hismotion, defendant submitted his own affidavit stating that his trial counsel never discussed withhim whether testifying would be a good or bad idea, and that he never told counsel that he wouldtestify at trial, and that trial counsel nevertheless told the jury that defendant would testify.Defendant's account is supported by the affirmation of defendant's appellate counsel, who statedthat trial counsel admitted that defendant did not tell him before trial that he would testify. Thus,defendant's allegations are potentially supported by other evidence, and "it cannot be said thatthere is no reasonable possibility that [they are] true" (People v Hill, 114 AD3d 1169, 1169 [4th Dept 2014] [internalquotation marks omitted]). We therefore conclude that a hearing is required to afford defendantan opportunity to prove that trial counsel did not discuss with him whether he would testifybefore informing the jury that defendant would do so, and that there was no strategic or tacticalexplanation for telling the jury that defendant would testify (see People v Washington, 128 AD3d 1397, 1400 [4th Dept 2015]).Consequently, we reverse the order and remit the matter to County Court to conduct a hearing onthat part of defendant's motion. Present—Whalen, P.J., Centra, DeJoseph, Curran andWinslow, JJ.