FRAZIER, JOSEPH P., PEOPLE v ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    970
    KA 10-00535
    PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JOSEPH FRAZIER, DEFENDANT-APPELLANT.
    ARLOW M. LINTON, ROCHESTER, FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
    COUNSEL), FOR RESPONDENT.
    Appeal, by permission of a Justice of the Appellate Division of
    the Supreme Court in the Fourth Judicial Department, from an order of
    the Supreme Court, Erie County (Penny M. Wolfgang, J.), dated August
    14, 2009. The order denied defendant’s CPL 440.10 motion.
    It is hereby ORDERED that the order so appealed from is
    unanimously reversed on the law and the matter is remitted to Supreme
    Court, Erie County, for further proceedings in accordance with the
    following Memorandum: Supreme Court erred in denying without a
    hearing defendant’s motion pursuant to CPL 440.10 (1) (h) to vacate
    the judgment convicting him of three counts of burglary in the first
    degree (Penal Law § 140.30 [2]-[4]) on the ground that he was denied
    his constitutional right to effective assistance of counsel. In
    support of the motion, defendant submitted his sworn statement
    asserting that trial counsel failed to inform him that a plea offer
    had been made and further asserting that he was prejudiced thereby
    because he would have accepted the offer. In addition, defendant
    submitted an affidavit from the prosecutor at his trial who recalled
    the specific terms of the plea offer, i.e., the reduced charge to
    which defendant was permitted to plead guilty and the trial court’s
    sentencing commitment. We agree with defendant that his submissions
    “support[] his contention that he was denied effective assistance of
    counsel . . . and raise[] a factual issue that requires a hearing”
    (People v Howard, 12 AD3d 1127, 1128; see People v Sherk, 269 AD2d
    755, lv denied 95 NY2d 804).
    Contrary to the People’s contention, the submissions of defendant
    in support of the motion were not “conclusively refuted by
    unquestionable documentary proof” (CPL 440.30 [4] [c]). The
    memorandum purportedly authored by the prosecutor at defendant’s trial
    merely suggests that defendant was aware of a plea offer prior to
    trial but does not conclusively refute defendant’s allegations to the
    contrary, nor is it sworn or even signed. Moreover, we do not agree
    -2-                           970
    KA 10-00535
    with the court that defendant’s submissions in support of the motion
    consist of factual allegations “made solely by the defendant and . . .
    unsupported by other affidavit or evidence” (CPL 440.30 [4] [d]; cf.
    People v Gunney, 13 AD3d 980, 983, lv denied 5 NY3d 789; People v
    Spencer, 272 AD2d 682, 685-686, lv denied 95 NY2d 858). We therefore
    reverse the order and remit the matter to Supreme Court to conduct a
    hearing on defendant’s motion.
    Entered:   September 30, 2011                   Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00535

Filed Date: 9/30/2011

Precedential Status: Precedential

Modified Date: 10/8/2016