TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R.
JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
POTTINGER, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN
OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND
by permission of a Justice of the Appellate Division of the
Supreme Court in the Fourth Judicial Department, from an
order of the Monroe County Court (Victoria M. Argento, J.),
entered December 31, 2013. The order denied without a hearing
the motion of defendant pursuant to CPL 440.10 to vacate a
judgment convicting him upon a jury verdict of, inter alia,
assault in the first degree (two counts) and robbery in the
first degree (two counts).
hereby ORDERED that the order so appealed from is unanimously
reversed on the law and the matter is remitted to Monroe
County Court for further proceedings in accordance with the
following memorandum: Defendant appeals from an order that
denied without a hearing his motion pursuant to CPL 440.10 to
vacate the judgment convicting him upon a jury verdict of,
inter alia, two counts each of assault in the first degree
(Penal Law § 120.10 , ) and robbery in the first
degree (§ 160.15 , ). This Court previously
affirmed the judgment of conviction (People v
Pottinger, 71 A.D.3d 1492');">71 A.D.3d 1492 [4th Dept 2010], lv
denied 15 N.Y.3d 755');">15 N.Y.3d 755 ).
agree with the contention of defendant in his main and
supplemental pro se briefs that he was entitled to a hearing
on his claims of ineffective assistance of counsel and actual
innocence. With respect to defendant's claim of
ineffective assistance of counsel, we conclude that nonrecord
facts may support defendant's contention that his trial
counsel failed to investigate two potential alibi witnesses
and was ineffective in failing to present the testimony of
one or both of those witnesses. It is well settled that
"[a] defendant's right to effective assistance of
counsel includes defense counsel's reasonable
investigation and preparation of defense witnesses"
(People v Jenkins, 84 A.D.3d 1403, 1408 [2d Dept
2011], lv denied 19 N.Y.3d 1026');">19 N.Y.3d 1026 ; see
People v Mosley, 56 A.D.3d 1140, 1140-1141 [4th Dept
2008]). Here, defendant's CPL 440.10 motion was supported
by the police investigation report, which demonstrated that
the alibi witnesses had been interviewed by the police and
made statements supporting defendant's alibi. We note
that the police report was annexed to the People's CPL
addition, defendant submitted his own affidavit and an
affidavit from one of the alibi witnesses likewise asserting
facts supporting defendant's alibi claim. While a hearing
may ultimately reveal that "counsel made reasonably
diligent efforts to locate the [alibi] witness[es]" and
present their testimony at trial (People v Gonzalez,
25 A.D.3d 357, 358 [1st Dept 2006], lv denied 6
N.Y.3d 833 ), or that there was a strategic reason for
the failure to do so (see People v Coleman, 10
A.D.3d 487, 488 [1st Dept 2004]), we agree with defendant
that his submissions raised factual issues requiring a
hearing (see generally People v Frazier, 87 A.D.3d
1350, 1351 [4th Dept 2011]).
we conclude that County Court erred in denying
defendant's motion without holding a hearing to address
defendant's claim that the judgment of conviction should
be vacated pursuant to CPL 440.10 (1) (h) based on his actual
innocence of the crimes of which he was convicted (see
People v Hamilton, 115 A.D.3d 12, 15 [2d Dept 2014]). We
conclude that defendant made a prima facie showing of actual
innocence sufficient to warrant a hearing on the merits
(see Hamilton, 115 A.D.3d at 27). Specifically, in
support of his claim of actual innocence, he submitted
competent evidence establishing an alibi through, inter alia,
witnesses who, although identified before trial in a police
report attached to the People's 710.30 notice, did not
testify at trial.
we reject the People's contention that defendant's
motion papers did not contain "sworn allegations
substantiating or tending to substantiate all the essential
facts" (CPL 440.30  [b]).
therefore reverse the order and remit the matter to County
Court to conduct a hearing in ...