Opinion
Argued May 28, 1987
Decided June 30, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, George Balbach, J., Cornelius J. O'Brien, J.
James B. Kobak, Jr., and Stuart J. Hendel for appellant.
John J. Santucci, District Attorney (Marc Resnick of counsel), for respondent.
MEMORANDUM.
The September 15, 1986 order of the Appellate Division should be modified to the extent of reversing the affirmance of the March 21, 1986 order of Supreme Court, Queens County, denying defendant's motion pursuant to CPL article 440 to vacate the judgment of conviction, and remitting the matter to Supreme Court, Queens County, for a hearing, and, as so modified, affirmed.
Defendant moved, pursuant to CPL article 440 to vacate her conviction of criminal possession of a controlled substance in the first degree, claiming she was denied her right to effective assistance of counsel because her trial counsel had a conflict of interest which precluded his providing effective assistance of counsel, because her trial counsel did not adequately advise her of the nature of the alleged conflict or her right to retain another attorney, and because her trial counsel's performance during the trial accorded representation that did not comport with minimal constitutional standards. In support of her motion, defendant provided a personal affidavit which set forth facts which did not appear in the record on direct appeal from her conviction. Such nonrecord facts are material and if established could entitle defendant to the relief sought. Under these circumstances, the lower courts erred in denying the motion without a hearing (see, People v Jenkins, 68 N.Y.2d 896; People v Satterfield, 66 N.Y.2d 796).
Based on the foregoing, the appeal from the April 23, 1984 order of the Appellate Division should be dismissed as subsumed in, and reviewable on, the appeal from so much of the September 15, 1986 order of the Appellate Division as affirmed the June 28, 1984 judgment of Supreme Court, Queens County.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur; Judge TITONE taking no part.
September 15, 1986 order of the Appellate Division modified and case remitted to Supreme Court, Queens County, for a hearing in accordance with the memorandum herein and, as so modified, affirmed. Appeal from the April 23, 1984 order of the Appellate Division dismissed.