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Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers

The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition:

County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]) on the grounds that material evidence adduced at his trial was false and was known by the prosecutor to be false prior to the entry of judgment and that the judgment was obtained in violation of his due process rights (see CPL 440.10 [1] [c], [h]).  Defendant submitted two affidavits from a prosecution witness that “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claims (CPL 440.30 [4] [b]).  The People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court “was not statutorily authorized to deny defendant’s motion without a hearing”… . People v Parsons, 48, 4th Dept 2-7-14

 

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