| People of State of New York v Perez |
| 2007 NY Slip Op 52198(U) [17 Misc 3d 134(A)] |
| Decided on November 16, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Criminal Court of the City of New York, Kings County
(Margarita Lopez-Torres, J.), dated December 14, 2005. The order denied defendant's motion to
vacate the judgment of conviction pursuant to CPL 440.10.
Order reversed on the law and matter remanded to the court below for determination de novo, following a hearing, of defendant's CPL 440.10 motion to vacate the judgment of conviction.
Defendant's CPL 440.10 motion to vacate the judgment of conviction on the ground of
ineffective assistance of counsel should not have been summarily denied (see CPL
440.30 [4]). On the record before us, questions of fact exist as to the circumstances surrounding
trial counsel's failure to call two potential alibi witnesses, as well as to the circumstances
surrounding defendant's own failure to testify. These issues necessitate a hearing (see People
v Flagg, 30 AD3d 889, 893 [2006]; People v Smith, 301 AD2d 471, 473 [2003]).
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: November 16, 2007