People v. Pace

• Decision Date: 17 November 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles PACE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1669
64 N.Y.S.3d 825

The PEOPLE of the State of New York, Respondent,
v.
Charles PACE, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 17, 2017.

64 N.Y.S.3d 825

Kurt D. Schultz, Sauquoit, for Defendant–Appellant.

Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

155 A.D.3d 1670

We agree with defendant that County Court erred in denying without a hearing his motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that he did not receive effective assistance of trial counsel. In June 2007, defendant was arrested and charged with

64 N.Y.S.3d 826

three felonies, including criminal sexual act in the first degree ( Penal Law § 130.50[1] ), and three misdemeanors, including assault in the third degree (§ 120.00[1] ) and unlawful imprisonment in the second degree (§ 135.05). He was subsequently indicted for all six crimes. Unbeknownst to the People, however, defendant had already pleaded guilty to the three misdemeanor charges when he was initially arraigned in Town Court. Shortly before jury selection, the People learned of the earlier disposition of the misdemeanor charges by plea after "obtaining the lower court paperwork." The court returned the misdemeanor charges to Town Court for sentencing and proceeded to trial against defendant on the felonies, without any objection by defense counsel that such separate prosecutions violated the double jeopardy provisions of CPL 40.20.

After defendant was convicted of the three felonies, he filed a direct appeal with this Court that raised numerous contentions, including the contention that he was denied effective assistance of counsel. We specifically noted in our decision affirming the judgment, however, that defendant did not contend that defense counsel was ineffective in failing to seek dismissal of the felony charges under CPL 40.20 ( People v. Pace, 70 A.D.3d 1364, 1366, 894 N.Y.S.2d 284 [4th Dept.2010], lv. denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010] ). Defendant thereafter filed the instant CPL 440.10 motion, raising that very contention. The court denied the motion without a hearing on the ground that defendant had unjustifiably failed to raise the contention on his direct appeal. We now reverse.

155 A.D.3d 1671

It is well settled that denial of a CPL 440.10 motion is required when a defendant unjustifiably fails to raise a ground or issue on a direct appeal and "sufficient facts appear[ed] on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion" ( CPL 440.10 [2] [c] ). There is no dispute that defendant, on direct appeal, did not raise the contention that his trial counsel was ineffective in failing to seek dismissal of the felony charges under CPL 40.20. The question is whether defendant could have raised that contention on direct appeal and thus whether his failure to do so was unjustifiable.

In order to succeed on a claim of ineffective assistance of trial counsel based on a failure to...