You are here: / / DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION...
,

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM THE DECISION WHETHER TO TESTIFY WAS HIS TO MAKE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing was required on defendant motion to vacate his conviction alleging defense counsel was ineffective for failing to inform him the decision whether to testify was defendant’s to make:

… [T]he court erred in denying his motion without a hearing with respect to whether defense counsel fulfilled his duty of advising defendant that his decision to testify was ultimately his own, not defense counsel’s, to make (see People v Cosby, 82 AD3d 63, 66 [4th Dept 2011], lv denied 16 NY3d 857 [2011]). Defendant has made a proper showing for a hearing by asserting a viable legal basis for the motion, substantiated by his own unrefuted sworn allegations and other evidentiary submissions … , and neither the mandatory denial provisions of CPL 440.10 (2) nor the permissive denial provisions of CPL 440.10 (3) apply to this case … . Cosby, relied on by both the court and the People in support of denying the motion, is distinguishable from this case inasmuch as a hearing pursuant to CPL 440.30 (5) was held in Cosby, thereby permitting us to determine on the merits that defendant was not deprived of his constitutional right to effective assistance of counsel and, consequently, that his right to a fair trial was not seriously compromised … . No such determination on the merits can be made on the record before us. We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to CPL 440.30 (5) on that part of defendant’s motion. People v Mirabella, 2020 NY Slip Op 05388, Fourth Dept 10-2-20

 

You might also like
CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
THE RECORD DID NOT SUPPORT A FINDING THAT DEFENDANT, WHO WAS MENTALLY ILL, UNDERSTOOD THE APPEAL WAIVER; DEFENDANT SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS.
COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT’S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED.
DEFENDANT PROPERTY OWNER DEMONSTRATED IT DID NOT CREATE OR HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION (A DEFECTIVE RAILING ON A SECOND-STORY BALCONY); HOWEVER, THERE WAS A QUESTION OF FACT WHETHER A LETTER FROM THE VILLAGE CODE ENFORCEMENT OFFICER SHOULD HAVE TRIGGERED AN INSPECTION OF THE PROPERTY (FOURTH DEPT).
THE SIDEWALK ON WHICH PLAINTIFF WAS RIDING HIS MOTORIZED BICYCLE WHEN HE FELL WAS NOT DESIGNED OR SUITABLE FOR RECREATIONAL USE; THEREFORE THE PROPERTY OWNER, SYRACUSE UNIVERSITY, COULD NOT RELY ON THE RECREATIONAL-USE STATUTE (GENERAL OBLIGATIONS LAW 9-103) TO ESCAPE LIABILITY (FOURTH DEPT).
NEW YORK PLAINTIFF, NORTH CAROLINA DEFENDANT, TORTS ALLEGEDLY OCCURRED IN GEORGIA; UNDER A CONFLICT OF LAWS ANALYSIS GEORGIA LAW CONTROLS (FOURTH DEPT).
CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).
Criminal Possession of a Weapon in the Third Degree Is Not a Lesser Inclusory Concurrent Count of Criminal Possession of a Weapon in the Second Degree

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

QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE JUSTIFIED BY THE EMERGENCY... THE MERE PRESENCE OF A REINSTATEMENT CLAUSE IN THE MORTGAGE, WHICH ESSENTIALLY...