People v. Brown
| Decision Date | 17 August 2016 |
| Parties | The PEOPLE, etc., respondent, v. David BROWN, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, NY (Anna Pervukhin and Angad Singh of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Linda Cantoni, and Nancy Fitzpatrick Talcott of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Aloise, J.), dated August 19, 2014, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered February 9, 2010, convicting him of kidnaping in the second degree, sex trafficking, promoting prostitution in the third degree, unlawful imprisonment in the first degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a hearing before a different Justice and a new determination of the defendant's motion thereafter.
The defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that he was deprived of the effective assistance of counsel, based on his trial counsel's failure to inform him of the possibility that, in the event he chose to reject a plea offer made by the People and was convicted after trial, he could be sentenced to a life sentence as a persistent felony offender. The Supreme Court denied the defendant's motion without a hearing.
A court may deny a CPL 440.10 motion without a hearing, inter alia, where an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all other circumstances of the case, there is no reasonable possibility that such allegation is true (see CPL 440.30[4][d] ). Here, in support of his motion, the defendant submitted an affidavit alleging facts which, if true, would be sufficient to prevail on the motion (see People v. Alomar, 89 A.D.3d 1098, 1099, 933 N.Y.S.2d 591 ; People v. Mobley, 59 A.D.3d 741, 742, 873 N.Y.S.2d 736 ; People v. Reynolds, 309 A.D.2d 976, 976–977, 766 N.Y.S.2d 142 ; People v. Perron, 273 A.D.2d 549, 550, 710 N.Y.S.2d 134 ). Contrary to the Supreme Court's...
To continue reading
Request your trial
- Muller v. N.Y.C. Dep't of Educ.
-
People v. Brown
...Court, Queens County, for a hearing before a different Justice and a new determination of the defendant's motion (see People v. Brown, 142 A.D.3d 622, 36 N.Y.S.3d 523 ).Upon remittitur, following a hearing on the defendant's CPL 440.10 motion, in an order dated September 12, 2017, the Supre......
-
People v. Holiday
...instructed the jury that it alone should assess the video and not rely on the prosecutor's comments, but the prosecutor persisted in 36 N.Y.S.3d 523 her characterization of the figures on the screen.Although the claims of prosecutorial misconduct regarding the testimony of the victim's moth......
-
People v. Flinn
...for failing to advise him of this potential affirmative defense to the charges to which he pleaded guilty (see People v. Brown, 142 A.D.3d 622, 623, 36 N.Y.S.3d 523 ). Accordingly, we remit the matter to the County Court for a hearing on that issue and a new determination thereafter of the ......
-
Forum Selection: Venue and Removal
...to consolidate §8:169 New York Civil Practice Before Trial 8-24 two actions venued in different counties. [ Arduino v. Molina-Ovando , 142 A.D3d 622, 36 N.Y.S.3d 186 (2d Dept 2016)]. But the court still has discretion to grant the change. And the court is likely to grant the change in the c......