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DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The defendant submitted an affidavit from an alibi witness claiming that defendant was out-of-state at the time of the offense and further stating that she had so informed defense counsel. In denying the motion to vacate, Supreme Court noted that defendant did not submit an affidavit from defense counsel. The Fourth Department recognized  that obtaining such an affidavit is problematic where ineffective assistance is alleged:

“It is well established that the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel’ ” … . Contrary to the court’s determination, a “defendant’s failure to submit an affidavit from trial counsel is not fatal to [a CPL 440.10] motion” … . Where, as here, the defendant’s ” application is adverse and hostile to his [or her] trial attorney,’ it is wasteful and unnecessary’ to require the defendant to secure an affidavit from counsel, or to explain his [or her] failure to do so” … . Moreover, to be entitled to a hearing, a defendant is not required to submit with his or her motion evidence corroborating the alibi witness’s affidavit … . Although the lack of corroboration is a factor the court may consider at a hearing, it is not a basis for denying the motion summarily. People v Scott, 2020 NY Slip Op 01807, Fourth Dept 3-13-20

 

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FAMILY COURT DID NOT MAKE THE REQUISITE FINDINGS IN THIS CUSTODY MATTER WHERE... DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE...