S. Dean, Center for Appellate Litigation, New York (Sara N.
Maeder of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Stephen J. Kress
of counsel), for respondent.
Richter, J.P., Andrias, Moskowitz, Feinman, Kapnick, JJ.
from order, Supreme Court, New York County (Gregory Carro,
J.), entered on or about May 18, 2016, which denied
defendant's CPL 440.10 motion to vacate the judgment,
held in abeyance, and the matter remanded for a hearing on
defendant's claim of ineffective assistance of counsel
and a decision de novo on the motion. Appeal from judgment,
same court and Justice, rendered March 27, 2013, convicting
defendant, after a jury trial, of criminal possession of a
weapon in the second degree, and sentencing him, as a second
violent felony offender, to a term of 8 years, held in
abeyance pending the aforesaid hearing and decision.
moved below to vacate his conviction pursuant to CPL 440.10,
arguing that he had received ineffective assistance of
counsel (see People v Baldi, 54 N.Y.2d 137, 146
; see also People v Turner, 5 N.Y.3d 476,
480-481 ). Defendant asserted that his counsel was
ineffective in prematurely filing "an
otherwise-meritorious speedy trial motion" and submitted
an affirmation from initial appellate counsel, but did not
submit an affidavit from trial counsel . Specifically,
defendant argued that counsel provided ineffective assistance
by failing to argue that the People's January certificate
of readiness was illusory, and that counsel filed the speedy
trial motion prematurely by failing to include three time
periods in calculating chargeable time in support of the
motion . The People asserted that counsel was
effective and "zealously and ably advocated
defendant's cause." The People stated that
generally, DNA testing delays are excluded from the
calculation of chargeable time, and therefore the calculation
of chargeable time was not clear cut. As to the certificate
of readiness, the People state that they were ready to
proceed without the DNA evidence, that the certificate was
not illusory, and therefore that there was no error in
failing to contest the certificate of readiness.
motion court mistakenly found that defendant's CPL 440.10
motion was procedurally barred. In reaching its decision, the
motion court concluded that because the record of pretrial
proceedings was sufficient to determine defendant's
ineffective assistance of counsel claim without reference to
any nonrecord facts, and because defendant failed to perfect
the direct appeal, it was foreclosed from considering the
motion on the merits and denied the motion. We disagree with
this procedural analysis, because as described below, the
current record is insufficient to determine defendant's
ineffective assistance of counsel claim.
ineffective assistance claim, as it relates to the speedy
trial motion, presents factual issues requiring a hearing. We
reject defendant's argument that the record before this
Court is sufficient to decide whether counsel was ineffective
by failing to account for the three challenged periods when
filing the speedy trial motion. Although the affirmation by
defendant's initial appellate counsel submitted in
support of defendant's 440.10 motion stated trial counsel
was ineffective for failing to properly research the speedy
trial motion before filing it, the affirmation fails to state
whether appellate counsel had any personal knowledge of the
case, or that he spoke to trial counsel about this issue. We
do not know and cannot speculate as to why trial counsel
submitted the motion when he did, and whether the decision to
file was the result of a calculation error. Nor do we know
what research or court records were reviewed before the
motion was filed. A hearing will address whether trial
counsel had strategic or other reasons for filing the speedy
trial motion when he did, and address defendant's reasons
that counsel was ineffective (cf. People v Santos,
145 A.D.3d 461');">145 A.D.3d 461 [1st Dept 2016]; People v Rosario,
132 A.D.3d 454');">132 A.D.3d 454 [1st Dept 2015]).
light of this determination and because we are holding
defendant's direct appeal in abeyance, we do not reach
defendant's claims on the direct appeal.
 Both trial counsel and defendant's
initial appellate counsel were from the Legal Aid Society.
New appellate counsel was subsequently appointed.
 The first speedy trial issue involves
counsel failing to account for the prosecution's January
certificate of readiness when asserting the prosecution had
not declared readiness before February 9, 2012; the second is
failing to account for his own consent to an adjournment from
May 24, 2012 to June 7, 2012; and the third is failing to
account for his ...