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The People of the State of New York v. Darren Simon

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


August 31, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
APPELLANT, - -
v.
DARREN SIMON,
DEFENDANT-RESPONDENT.

Per curiam.

People v Simon (Darren)

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2011

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Laura Safer-Espinoza, J.), dated April 20, 2010, which granted, without a hearing, defendant's motion pursuant to CPL 440.10 to vacate a judgment of conviction (same court and Judge), rendered October 14, 2007, convicting him, upon a plea of guilty, of criminal possession of stolen property in the fifth degree, and imposing sentence.

Order (Laura Safer-Espinoza, J.), dated April 20, 2010, reversed, on the law, and matter remanded for a new determination, following an evidentiary hearing.

Defendant's motion, pursuant to CPL 440.10, to vacate the judgment of conviction based upon ineffective assistance of counsel (see CPL 440.10[1][h]; People v McDonald, 1 NY3d 109, 114 [2003]), should not have been granted without a hearing. In support of his motion, while defendant submitted his current defense counsel's affirmation and a sworn affidavit alleging, inter alia, that he would not have pleaded guilty in this case but for prior counsel's misadvice as to the potential adverse consequences of his guilty plea, he did not include an affirmation of his prior counsel.

Since defendant's allegations were neither conceded to be true by the People nor "conclusively substantiated by unquestionable documentary proof" (CPL 440.30[3][c]), Criminal Court was required to "conduct a hearing" prior to making the required "findings of fact essential to the determination" of the motion (CPL 440.30[5]; see People v Mobley, 59 AD3d 741, 742 [2009], lv denied 12 NY3d 856 [2009]; People v McKenzie, 4 AD3d 437, 440 [2004]; People v Michael, 16 Misc 3d 84, 86 [2007]; cf. People v Smiley, 67 AD3d 713, 714 [2009], lv denied 13 NY3d 942 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: August 31, 2011

20110831

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