People v. Sherk

Feb 16, 2000
Versions:269 A.D.2d 755
704 N.Y.S.2d 401
2000 N.Y. App. Div. LEXIS 1632

—Order unanimously reversed on the law and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: County Court erred in denying without a hearing the motion of defendant pursuant to CPL 440.10 (1) (h) to vacate his conviction on the ground that he was denied his constitutional right to effective assistance of counsel. Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Specifically, defendant asserts that trial counsel failed to relay a plea offer to him and that he was prejudiced thereby because he would have accepted the offer. That assertion supports his contention that he was denied meaningful representation (see, People v Alexander, 136 Mise 2d 573, 584-585; see also, United States v Gordon, 156 F3d 376, 379-380; Boria v Keane, 99 F3d 492, cert denied 521 US 1118). Defendant’s sworn statement raises a factual issue that requires a hearing. Consequently, we reverse the order and remit the matter to Erie County Court to conduct a hearing on defendant’s motion. (Appeal from Order of Erie County Court, D’Amico, J. — CPL art 440.) Present — Pine, J. P., Hurl-butt, Scudder and Lawton, JJ.