The Third Department, in a full-fledged opinion by Justice Taylor, over a dissent, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Even though some of the ineffective assistance claims could be determined from the original record (and therefore should have been raised on appeal), because some of the claims could not be determined from the record, the court could consider all the ineffective assistance issues:
… [W]e do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant’s argument that trial counsel was ineffective for failing to impeach the cabdriver “is dependent upon [a] statement[] to the police that [is] outside the record” and, therefore, was properly raised in the context of the instant CPL 440.10 motion … . Defendant also faults trial counsel for failing to request that the crime of assault in the third degree … be submitted to the jury as a lesser included offense of assault in the second degree … . While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that “the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People’s case” … . Because defendant’s complaint about counsel in this regard is predicated on counsel’s strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion … .
The two other allegations of ineffectiveness raised on the motion — that counsel failed to object to County Court’s Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 — are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 AD3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. … [W]e agree. People v Taylor, 2017 NY Slip Op 07649, Third Dept 11-2-17
CRIMINAL LAW (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/VACATE CONVICTION, MOTION TO (INEFFECTIVE ASSISTANCE, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))