DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION BASED UPON AN APPELLATE DECISION WHICH CAME OUT AFTER HER APPEAL BUT BEFORE SHE APPLIED FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS; THE COURT OF APPEALS DECISION WHICH HELD THE EXECUTIVE LAW ALLOWING DEFENDANT TO BE PROSECUTED BY THE “JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS” UNCONSTITUTIONAL SHOULD NOT BE APPLIED RETROACTIVELY (THIRD DEPT).

​The Third Department, reversing Supreme Court, over a two-justice concurrence, determined defendant was entitled to a hearing on her motion to vacate her conviction based on an appellate decision which came out after her appeal but before she applied for permission to appeal to the Court of Appeals. In addition, the Third Department held the Court of Appeals decision which found the statute (Executive Law § 552 (2)) authorizing her prosecution by the “Justice Center for the Protection of People with Special Needs” unconstitutional should not be applied retroactively:

Under the unique circumstances of this case, where the case defendant relies upon — Hodgdon [175 AD3d 65]— had not yet been decided at the time that her direct appeal was perfected, we find that her failure to challenge whether the Justice Center had permission to prosecute her and whether the District Attorney maintained responsibility of the prosecution was justified … . Therefore, County Court abused its discretion in concluding that it was “bound” to deny defendant’s motion under CPL 440.10 (2) (c), without a hearing, on the ground that defendant unjustifiably failed to raise the Hodgdon defense on direct appeal. … [W]e remit the matter to County Court for a hearing pursuant to CPL 440.30 (5). …

Defendant contends … she should be entitled to the benefit of the decisions in Hodgdon and People v Viviani (36 NY3d 564 [2021]), which found that Executive Law § 552 was unconstitutional to the extent that it empowered the Justice Center with concurrent prosecutorial authority … . * * *

… [T]he holding in Viviani does not go to the heart of a reliable determination of guilt or innocence … . * * *

… [D]efendant is not entitled to have the new constitutional rule articulated by Viviani applied retroactively to her matter … . People v Rice, 2023 NY Slip Op 01211, Third Dept 3-9-23

Practice Point: Defendant should have been granted a hearing on her motion to vacate her conviction based on an appellate decision which came out after defendant’s appeal but before she applied for permission to appeal to the court of appeals.

Practice Point: The Court of Appeals decision which declared the statute under which defendant was prosecuted was not applied retroactively because it did not go to the hear of a reliable determination of guilt or innocence.