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 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

 

You might also like
Cognizable Counterclaim for Breach of Domestic Partnership Stated
THE SUPPRESSION COURT DID NOT RULE ON DEFENDANT’S ARGUMENT THE INITIAL PURSUIT BY THE POLICE WAS NOT JUSTIFIED; AN APPELLATE COURT CANNOT CONSIDER AN ISSUE NOT RULED UPON; MATTER REMITTED (FOURTH DEPT).
GENERAL OBLIGATIONS LAW 17-105, NOT 17-101, APPLIES TO THE REVIVAL OF AN EXPIRED STATUTE OF LIMITATIONS FOR A MORTGAGE FORECLOSURE; THE RELEVANT DOCUMENTS HERE DID NOT MEET THE CRITERIA OF SECTION 17-105; FORECLOSURE WAS THEREFORE TIME-BARRED (FOURTH DEPT).
ALTHOUGH THE TRAFFIC ACCIDENT OCCURRED IN VIRGINIA, PLAINTIFF’S CHOICE OF FORUM (NEW YORK) SHOULD HAVE BEEN UPHELD; VIRGINIA WITNESSES MAY COME TO NEW YORK VOLUNTARILY OR THE VIRGINIA WITNESSES COULD BE DEPOSED IN VIRGINIA; SUPREME COURT SHOULD NOT HAVE SPECULATED ABOUT THE AVAILABILITY OF VIRGINIA WITNESSES (FOURTH DEPT).
Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission
THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​
A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​
DETERMINATION ALLOWING USE OF RESIDENTIAL STREETS TO ACCESS A CLAY MINING OPERATION REVERSED, NO DEMONSTRATION PROPERTY WAS WORTHLESS UNDER EXISTING ZONING.

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

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