THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSEPH FRAZIER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSEPH FRAZIER, DEFENDANT–APPELLANT.

KA 10–00535

Decided: September 30, 2011

PRESENT:  SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ. ARLOW M. LINTON, ROCHESTER, FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.

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 Supreme Court, Erie County (Penny M. Wolfgang, J.), dated August 14, 2009.   The order denied defendant's CPL 440.10 motion.

Contrary to the People's contention, the submissions of defendant in support of the motion were not “conclusively refuted by unquestionable documentary proof” (CPL 440.30[4][c] ).  The memorandum purportedly authored by the prosecutor at defendant's trial merely suggests that defendant was aware of a plea offer prior to trial but does not conclusively refute defendant's allegations to the contrary, nor is it sworn or even signed.   Moreover, we do not agree with the court that defendant's submissions in support of the motion consist of factual allegations “made solely by the defendant and ․ unsupported by other affidavit or evidence” (CPL 440.30[4][d];  cf.   People v. Gunney, 13 AD3d 980, 983, lv denied 5 NY3d 789;  People v. Spencer, 272 A.D.2d 682, 685–686, lv denied 95 N.Y.2d 858).   We therefore reverse the order and remit the matter to Supreme Court to conduct a hearing on defendant's motion.

Patricia L. Morgan

Clerk of the Court