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MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Third Department determined defendant's motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing:

To establish entitlement to a hearing, a defendant must demonstrate that “non-record facts set forth in [a] CPL article 440 motion . . . are material and [that], if established, they would entitle him [or her] to relief” … . Defendant's most significant sworn allegation is that counsel failed to watch the entire recording of his interview with law enforcement — or to read the entire transcript of that interview — prior to waiving any challenge to its admissibility and making assurances to the jury during opening remarks as to the contents of that recording. Notably, defendant's father also submitted a sworn statement suggesting that counsel may not have been familiar with the contents of the recorded police interview. Further, defendant made factual allegations concerning the circumstances surrounding that interview that would, if credited, support a finding that it was, at least in part, a custodial interrogation, which is relevant because a strategic decision whether to seek suppression would have required being sufficiently familiar with the contents of that recording … . Defendant also alleged a number of specific deficiencies in counsel's assistance during the plea bargaining and trial stages which, if credited, may entitle him to relief … , including that counsel failed to timely convey a plea offer … . Defendant further avers that counsel made unqualified assurances regarding a favorable outcome if he went to trial and made specific assurances concerning the sentence that would be imposed if he were convicted after trial. In regard to counsel's pretrial actions, defendant averred that, but for counsel's false assurances and inadequate representation, he would have accepted a plea deal. Taken as a whole, we find that defendant provided sufficient sworn, material statements in support of his motion that, if credited, would establish that he received less than meaningful representation … . People v Sposito, 2016 NY Slip Op 04467, 3rd Dept 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

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FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED. PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION...