| People v Lee |
| 2019 NY Slip Op 03516 [172 AD3d 1925] |
| May 3, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Lee, Appellant. |
Jeffrey Wicks, PLLC, Rochester (Jeffrey Wicks of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien 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 Supreme Court, Monroe County (Francis A.Affronti, J.), dated June 7, 2016. The order denied defendant's motion pursuant to CPL 440.10 tovacate his judgment of conviction.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andthe matter is remitted to Supreme Court, Monroe County, for a hearing pursuant to CPL 440.30(5).
Memorandum: Defendant appeals from an order denying his CPL 440.10 motion to vacate ajudgment convicting him, following a jury trial, of ten charges ranging from robbery in the firstdegree (Penal Law § 160.15 [1], [3]) to attempted petit larceny(§§ 110.00, 155.25). On a prior appeal, we affirmed the judgment ofconviction (People v Lee, 284 AD2d 943, 943 [4th Dept 2001], lv denied 96NY2d 920 [2001]).
Defendant filed seven postjudgment motions in state and federal court, all of which weredenied. Defendant's codefendant, who was tried jointly with defendant, also filed severalpostjudgment motions and, in 2011, the Court of Appeals determined that the codefendant wasentitled to a reconstruction hearing to determine whether he was present at a pretrialSandoval hearing (People vWalker, 18 NY3d 839, 840 [2011]). Following the reconstruction hearing, SupremeCourt concluded that the codefendant failed to meet his burden of establishing his absence fromthe Sandoval hearing (People vWalker, 117 AD3d 1578, 1579 [4th Dept 2014]). We reversed the order, vacated thecodefendant's judgment of conviction, and granted him a new trial on the ground that the People,not the codefendant, had the burden of proving that he was present at the Sandovalhearing, which they failed to meet (id.). Defendant thereafter filed the instant CPL 440.10motion, contending that he too was absent from the Sandoval hearing. Supreme Courtsummarily denied the motion, and we granted his CPL 460.15 application for a certificategranting leave to appeal.
We agree with defendant that denial of the motion was not mandated by CPL 440.10 (2) (c)inasmuch as sufficient facts did not appear in the trial transcript to permit adequate review ofdefendant's Sandoval contention on his direct appeal (see generally People v Pace, 155 AD3d 1669, 1673 [4th Dept2017]). Moreover, defendant's motion relied on, inter alia, the testimony from the codefendant'sreconstruction hearing, which was unavailable to defendant when he perfected his direct appeal.During that hearing, the codefendant testified that he and defendant were brought into thecourtroom together, implying that they both were absent from the Sandoval hearing.
Furthermore, "[a]lthough a court may refuse to consider issues that were or could have beenraised in prior postjudgment motions, we nevertheless 'exercise our discretion to reach the merits'. . . and we conclude that the court erred in denying the motion without a hearing"(People v Reed, 159 AD3d1551, 1552 [4th Dept 2018]; see CPL 440.10 [3] [b], [c]). In our view, becausedefendant submitted credible evidence indicating that he was absent from the Sandovalhearing, and the People failed to counter that showing, the court erred in denying his motionwithout first conducting a hearing to resolve that issue (see Reed, 159 AD3d at1552-1553; see also People v Jones,24 NY3d 623, 636 [2014]; People vParsons, 114 AD3d 1154, 1154 [4th Dept 2014]). We therefore reverse the order andremit the matter to Supreme Court for a hearing pursuant to CPL 440.30 (5).Present—Smith, J.P., Lindley, DeJoseph, NeMoyer and Curran, JJ.