The Third Department, reversing County Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary:
… [W]e agree with defendant that he is entitled to a hearing on whether counsel was ineffective in connection with defendant’s alleged failure to fully cooperate under the terms of the 2016 cooperation agreement. A hearing is required on a CPL article 440 motion “if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” … . In that regard, defendant averred that he consistently gave a truthful account of the burglary and had fully cooperated in the prosecution of [a codefendant] as required by the 2016 cooperation agreement, and his motion papers included a September 2016 supporting deposition from his sister and an affidavit from [his former attorney] to support those claims. Defendant also alleged specific deficiencies in counsel’s performance, namely, that counsel failed to investigate whether the Special Prosecutor’s withdrawal of the 2016 cooperation agreement was impermissibly “premised on bad faith, invidiousness, . . . dishonesty” or unconstitutional considerations and, moreover, failed to discuss the possibility of demanding a hearing on that issue with defendant … . People v Buckley, 2022 NY Slip Op 04197, Third Dept 6-30-22
Practice Point: If a motion to vacate the conviction raises substantive issues which are corroborated in some way (here with an affidavit by defendant’s prior attorney), and these substantive issues are not adequately dealt with in the People’s responding papers, a hearing must be held.