PEOPLE v. ROSS (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Erie County, for a hearing pursuant to CPL 440.30 (5) in accordance with the following memorandum: Defendant appeals from an order that denied without a hearing his CPL 440.10 motion to vacate the judgment convicting him, following a jury trial, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). We affirmed the judgment of conviction on direct appeal (People v. Ross, 118 A.D.3d 1321, 989 N.Y.S.2d 548 [4th Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014], reconsideration denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015]) and denied defendant's two subsequent motions for writs of error coram nobis (People v. Ross, 151 A.D.3d 1782, 53 N.Y.S.3d 580 [4th Dept. 2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 585, 89 N.E.3d 1265 [2017]; People v. Ross, 129 A.D.3d 1556, 9 N.Y.S.3d 915 [4th Dept. 2015], lv denied 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 [2016], reconsideration denied 27 N.Y.3d 1155, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016]).

Defendant made the instant motion to vacate the judgment on the grounds of ineffective assistance of counsel and a denial of his right to counsel related to the alleged failure of Supreme Court to inquire at trial into his request for a substitution of his third assigned counsel (trial counsel). We conclude that defendant is entitled to a hearing with respect to his claim of ineffective assistance of counsel only.

With respect to his claim of ineffective assistance of counsel, defendant contends that trial counsel failed to interview or call two exculpatory witnesses who defendant had identified and who were available and willing to testify. Those witnesses submitted affidavits in which they corroborated defendant's contention that he fired the .22 caliber rifle at issue into the air as warning shots and did not fire directly at the victim. The witnesses also averred that they were willing and able to testify at trial but were never contacted by trial counsel. Defendant also contends that trial counsel failed to inform him that the decision whether he would testify at trial was a decision for defendant, not trial counsel, to make.

As defendant correctly contends, his claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record (see People v. Wilson [Appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018]; see e.g. People v. Williams [Appeal No. 2], 175 A.D.3d 980, 981-982, 108 N.Y.S.3d 584 [4th Dept. 2019], lv denied 34 N.Y.3d 1020, 114 N.Y.S.3d 744, 138 N.E.3d 473 [2019]; People v. Dixon, 147 A.D.3d 1518, 1519, 47 N.Y.S.3d 617 [4th Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017]). Here, defendant's submissions on the motion raise factual issues requiring a hearing concerning trial counsel's failure to interview and call the two exculpatory witnesses (see People v. Howard, 175 A.D.3d 1023, 1025, 107 N.Y.S.3d 583 [4th Dept. 2019]; see also People v. Scott, 181 A.D.3d 1220, 1221-1222, 121 N.Y.S.3d 458 [4th Dept. 2020]; People v. Mosley, 56 A.D.3d 1140, 1140-1141, 867 N.Y.S.2d 289 [4th Dept. 2008]), even in the absence of an affidavit from trial counsel (see Scott, 181 A.D.3d at 1221-1222, 121 N.Y.S.3d 458). We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as “ ‘such a claim constitutes a single, unified claim that must be assessed in totality’ ” (Wilson, 162 A.D.3d at 1592, 78 N.Y.S.3d 819), and we therefore reverse the order and remit the matter to Supreme Court to conduct a hearing pursuant to CPL 440.30 (5) on that claim.

Defendant further contends that the court erred in denying without a hearing that part of his motion that was based on his claim that the court failed to inquire at trial into his complaints regarding trial counsel (see generally People v. Sides, 75 N.Y.2d 822, 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]). We reject that contention. The allegations of fact essential to support that part of the motion were made solely by defendant, and we conclude that “there is no reasonable possibility that such allegation[s are] true” (CPL 440.30 [4] [d]).