THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SHAWN CAMPBELL DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Steuben County Court (John W. Latham, J.), entered July 1, 2008.   The order denied the motion of defendant to vacate his judgment of conviction pursuant to CPL 440.10.

It is undisputed that defendant's trial counsel had obtained an “open file” discovery arrangement with the District Attorney and that the correspondence was included in the file.   Despite the fact that counsel representing defendant on the CPL 440.10 motion asked defendant's trial counsel to provide an affidavit setting forth what he knew and what he had advised defendant about the information in that correspondence, trial counsel failed to provide the affidavit.   We thus conclude that the court erred in failing to conduct a hearing inasmuch as defendant raised an issue of fact whether defendant's trial counsel was aware of the potentially exculpatory evidence and whether he advised defendant about that evidence (cf.  People v. Waymon, 65 AD3d 708, 709, lv denied 13 NY3d 857, 863).   We further conclude that defendant's assertion of ineffective assistance of counsel has not been “conclusively refuted by documentary evidence” (People v. Session, 34 N.Y.2d 254, 256), although we note that an appendix to the People's brief and portions of the brief were stricken by order of this Court entered December 2, 2010 because they addressed matters outside the record.   We therefore conclude, based upon the record before us, that “ ‘a hearing should be held to promote justice [because] the issues raised by the motion are sufficiently unusual and suggest searching investigation’ “ (People v. Ausserau, 77 A.D.2d 152, 155, quoting People v. Crimmins, 38 N.Y.2d 407, 416;  see People v. Kearney, 78 AD3d 1329;  People v. Nicholson, 222 A.D.2d 1055, 1057).   Thus, we hold the case, reserve decision and remit the matter to County Court to conduct a hearing to determine what defendant's trial counsel knew about the alleged potentially exculpatory evidence and whether he related that information to defendant.

Patricia L. Morgan

Clerk of the Court