PEOPLE v. LIGGINS (2008)

Defendant appeals from an order summarily denying his motion pursuant to CPL 440.10 seeking to vacate the judgment convicting him, upon his plea of guilty, of depraved indifference murder (Penal Law § 125.25 [2] ).   Defendant waived his right to appeal as part of the plea agreement, and we conclude that the waiver encompasses all of the contentions raised by defendant in his CPL 440.10 motion with the exception of his contention that the plea was not voluntarily entered on the ground that he received ineffective assistance of counsel (see generally People v. Martin [Matthew D.], 55 A.D.3d 1317, 865 N.Y.S.2d 162;  People v. Elardo, 52 A.D.3d 1272, 858 N.Y.S.2d 633, lv. denied 11 N.Y.3d 787, 788, 866 N.Y.S.2d 614, 896 N.E.2d 100;  People v. Fairman, 38 A.D.3d 1346, 1347, 832 N.Y.S.2d 703, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200).   According to defendant, defense counsel failed to advise him that he had a viable defense based on his age, which would have resulted in the disposition of the charges in Family Court as reckless manslaughter rather than as depraved indifference murder in County Court (see generally People v. Bowman, 34 A.D.3d 935, 937, 823 N.Y.S.2d 604, lv. denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795;  People v. Nichols, 21 A.D.3d 1273, 1274, 801 N.Y.S.2d 665, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165), and he would not have pleaded guilty to depraved indifference murder had he known of that defense (see People v. Bonilla, 6 A.D.3d 1059, 1060, 775 N.Y.S.2d 619). Defendant further contended in support of his motion that the goal of defense counsel from the outset of the prosecution was to dispose of the charges by way of a plea of guilty, and that defense counsel consequently failed to pursue a viable challenge to the denial of defendant's right to counsel and failed to request that the court review the minutes of the grand jury proceedings.   We conclude that defendant thereby raised issues of fact in his support of his motion and thus that the court erred in denying his motion without conducting a hearing.   We therefore reverse the order and remit the matter to Supreme Court for a hearing on defendant's motion consistent with our decision.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Oneida County, for a hearing on the motion.

MEMORANDUM: