Appeal, by permission, from an order of the Justice Court of the Town of Southeast, Putnam County (Gregory L. Folchetti, J.), dated May 19, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The order denied, without a hearing, defendant's motion, pursuant to CPL 440.10 (1), to vacate a judgment convicting her, upon her plea of guilty, of attempted animal cruelty.
ORDERED that the order is reversed, on the law, and defendant's motion to vacate the judgment of conviction is granted to the extent of remitting the matter to the Justice Court for a new determination, following a hearing, of defendant's motion insofar as it seeks to vacate the judgment of conviction pursuant to CPL 440.10 (1) (b) and (h).
Defendant was convicted, upon her guilty plea, of attempted animal cruelty(Penal Law § 110.00; Agriculture and Markets Law § 353). She subsequently moved to vacate the judgment of conviction, pursuant to CPL 440.10 (1) (b), (g), and (h), among other grounds. In her motion papers, defendant made serious allegations about the conduct of a deputy sheriff involved in the case. The People did not deny these allegations.
With respect to defendant's CPL 440.10 (1) (b) claim, we find, contrary to the determination of the Justice Court, that the allegations are sufficient to warrant a hearing on the questions whether defendant's guilty plea "was procured by . . . misrepresentation . . . on the part of" (CPL 440.10  [b]) the deputy sheriff, and whether the deputy sheriff was, under the circumstances, "a prosecutor or a person acting for or in behalf of . . . a prosecutor" (CPL 440.10  [b]). As for defendant's CPL 440.10 (1) (h) claims that the judgment was obtained in violation of her federal and state constitutional rights to counsel and to the effective assistance of counsel, the Justice Court did not reach these claims in its decision. We do not reach them in the current procedural posture of the case, but, rather, remit the case for the Justice Court to pass upon them in the first instance (see CPL 470.15 ; People v LaFontaine, 92 NY2d 470, 474 ) following the hearing.
Defendant's CPL 440.10 (1) (g) claim lacks merit because CPL 440.10 (1) (g), by its terms, applies only to convictions after trial (see People v Philips, 30 AD3d 621 ). We therefore do not disturb the order of the Justice Court insofar as it summarily denied defendant's request for relief under CPL 440.10 (1) (g). We note that, to the extent that defendant bases her claims on contract law, her arguments are misplaced because "contract law rules will not be applied to plea negotiations . . ." (People v McConnell, 49 NY2d 340, 346 ).
Accordingly, the order is reversed and the matter remitted to the Justice Court for a new determination, following a hearing, of defendant's motion insofar as it seeks to vacate the judgment of conviction pursuant to CPL 440.10 (1) (b) and (h).
Tanenbaum, J.P., Molia and Iannacci, ...