PEOPLE v. JIE MEI CHEN (2006)

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

The PEOPLE, etc., respondent, v. JIE MEI CHEN, appellant.

Decided: February 07, 2006

STEPHEN G. CRANE, J.P., WILLIAM F. MASTRO, REINALDO E. RIVERA, and ROBERT A. SPOLZINO, JJ.

Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel, John M. Castellano, and Johnnette Traill of counsel), for respondent.

Appeal by the defendant, by permission, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), dated March 20, 2004, as, after a hearing, in effect, upon reargument, adhered to its prior determination in an order dated March 21, 2001, denying his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Finnegan, J.), rendered August 19, 1997.

ORDERED that the order is reversed insofar as appealed from, on the law, and upon reargument, the order dated March 21, 2001, is vacated, and the matter is remitted to the Supreme Court, Queens County, for a hearing consistent herewith, before a different justice, and a new determination.

Under the particular circumstances of this case, the Supreme Court should have appointed counsel to represent the defendant at the hearing on his motion, in effect, for leave to reargue his prior motion pursuant to CPL 440.10 to vacate a judgment rendered August 19, 1997.

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