You are here: / / DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE...
, ,

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 two-justice dissent, determined defendant’s motion to vacate his conviction on ineffective assistance ground should not have been denied without a hearing:

… [D]efendant’s CPL 440.10 motion was supported by a notarized but unsworn statement of a witness, dated prior to defendant’s trial, who asserted that defendant had borrowed the witness’s jacket minutes before defendant’s arrest, that the controlled substances in the pockets of that jacket belonged to the witness, and that defendant had no prior knowledge of the controlled substances … . Defendant himself averred in an affidavit submitted in support of his motion that he informed trial counsel prior to trial of the witness’s willingness to testify. Defendant’s motion therefore set forth sufficient facts tending to substantiate his claim that he was denied effective assistance of counsel, and we therefore agree with defendant that Supreme Court erred in denying that claim without a hearing … .

We further agree with defendant that the court erred in rejecting his contention that trial counsel was ineffective for failing to either secure police surveillance of the traffic stop that led to defendant’s arrest or seek sanctions for the prosecution’s alleged failure to preserve the same. People v Fox, 2020 NY Slip Op 01809, Fourth Dept 3-13-20

 

You might also like
THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). ​
APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT).
INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).
PLAINTIFF MOVED TO AMEND THE COMPLAINT AFTER THE NOTE OF ISSUE AND CERTIFICATE OF READINESS HAD BEEN FILED; EVEN THOUGH THE AMENDMENT ADDED A CAUSE OF ACTION REQUIRING FURTHER DISCOVERY, THE MOTION WAS GRANTED BECAUSE DEFENDANT DID NOT DEMONSTRATE PREJUDICE (FOURTH DEPT).
RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING, CASE REMITTED.
PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT),
DEFENDANT MADE A VALID REQUEST TO APPEAR IN THE GRAND JURY BEFORE THE AMENDED INDICTMENT WAS FILED; THE FACT THAT DEFENDANT HAD PREVIOUSLY DECLINED THE OPPORTUNITY TO TESTIFY WAS OF NO SIGNIFICANCE (FOURTH DEPT). ​
REFUSING TO SUBMIT TO A BREATH TEST IS NOT A CRIMINAL OFFENSE (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE... CORRESPONDENCE BETWEEN THE TOWN AND THE PROPERTY OWNER AMOUNTED TO AN AGREEMENT...