Opinion
12-23-2015
The PEOPLE of the State of New York, Respondent, v. Christopher ANNIS, Defendant–Appellant.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Defendant–Appellant. Eric R. Schiener, Special Prosecutor, Geneseo, for Respondent.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Defendant–Appellant.
Eric R. Schiener, Special Prosecutor, Geneseo, for Respondent.
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:Defendant appeals from an order denying, without a hearing, his CPL 440.10 motion to vacate a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i] ). We previously affirmed the judgment of conviction (People v. Annis, 126 A.D.3d 1525, 6 N.Y.S.3d 363 ). With respect to defendant's contention concerning an alleged improper communication between an assistant district attorney and a sworn juror, we conclude that County Court properly denied the motion without a hearing inasmuch as the motion papers "do not contain sworn allegations substantiating or tending to substantiate all the essential facts" of defendant's claim (CPL 440.30[4] [b] ; see People v. Howington, 122 A.D.3d 1289, 1289–1290, 996 N.Y.S.2d 436, lv. denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 ). With respect to defendant's contentions that he was denied a fair trial by prosecutorial misconduct and that the court erred in excluding photographs of the vehicle, we conclude that the court properly denied the motion without a hearing inasmuch as "sufficient facts appear[ed] on the record with respect to [those contentions] to permit adequate review thereof upon" a direct appeal (CPL 440.10[2][b] ; see People v. Rossborough, 122 A.D.3d 1244, 1246, 996 N.Y.S.2d 407 ) and, indeed, defendant's direct appeal from the judgment was pending.
Defendant's contentions that trial counsel was ineffective in failing to provide an offer of proof regarding the photographs of the vehicle and to object to the prosecutor's summation were not raised in his CPL 440.10 motion and are therefore not properly before us (see People v. Pennington, 107 A.D.3d 1602, 1604, 966 N.Y.S.2d 803, lv. denied 22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554 ). With respect to defendant's remaining claims of ineffective assistance of counsel, however, we conclude that nonrecord facts may support defendant's contention that his trial counsel unreasonably withdrew his request for a Martin hearing (see People v. Martin, 143 Misc.2d 341, 540 N.Y.S.2d 412 ) and failed to request a Huntley hearing. In support of his motion, defendant submitted a police report indicating that, in response to an officer's request for a chemical test and before defendant made statements to the police, defendant asked to speak to an attorney. Based on the evidence in the record, "we can discern no tactical reason for trial counsel's" withdrawal of his request for a Martin hearing or failure to request a Huntley hearing (People v. Dombrowski, 87 A.D.3d 1267, 1268, 930 N.Y.S.2d 321 ). We thus conclude that "a hearing is required to afford defendant's trial counsel an opportunity ... to provide a tactical explanation for the omission[s]" (id. [internal quotation marks omitted] ). We therefore reverse the order and remit the matter to County Court to conduct a hearing on defendant's CPL 440.10 motion (see People v. Washington, 128 A.D.3d 1397, 1400, 7 N.Y.S.3d 798 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Allegany County Court for further proceedings.