Appeal, by permission, from an order of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), dated June 14, 2010.
People v Johnson (Charles)
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and ALIOTTA, JJ
The order, without a hearing, denied defendant's motion, pursuant to CPL 440.10 (1) (h), to vacate the judgment convicting him, upon his plea of guilty, of disorderly conduct.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant's motion to vacate the judgment of conviction.
In May 2009, defendant, along with two co-defendants, was charged with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ) and unlawful possession of marihuana (Penal Law § 221.05). In satisfaction of the charges, defendant pleaded guilty to disorderly conduct (Penal Law § 240.20) and was sentenced to a conditional discharge. Thereafter, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction on the ground that he had received the ineffective assistance of counsel. Without holding a hearing, the Criminal Court denied defendant's motion.
Upon a review of the record, we find that the allegations set forth in
defendant's affidavit in support of his CPL 440.10 (1) (h) motion are
sufficient to warrant a hearing (see People v Lange, 21 Misc 3d 6
[App Term, 9th & 10th Jud Dists 2008], lv denied 11 NY3d 855 ;
People v Michael, 16 Misc 3d 84 [App Term, 9th & 10th Jud Dists 2007]; see
also People v Mobley, 59 AD3d 741 ).
Accordingly, the order is reversed and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant's motion to vacate the judgment of conviction.
Pesce, P.J., Weston and Aliotta, JJ., concur. Decision Date: January 08, 2013
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