        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

108
KA 13-00022
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELJAE HILL, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Onondaga County Court (John H. Crandall, A.J.), dated December 19,
2012. The order denied the motion of defendant to vacate a judgment
of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Onondaga
County Court for a hearing pursuant to CPL 440.30 (5).

     Memorandum: We agree with defendant that County Court erred in
denying without a hearing his motion pursuant to CPL 440.10 to vacate
his judgment of conviction on the ground that his plea was not
knowingly, voluntarily or intelligently entered because he did not
receive effective assistance of counsel. Defendant’s submissions
“tend[ ] to substantiate all the essential facts” necessary to support
his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]).
Moreover, his allegations are not contradicted by a court record and
are supported by other affidavits, and “it cannot be said that ‘there
is no reasonable possibility that [they are] true’ ” (People v Beach,
186 AD2d 935, 936, quoting CPL 440.30 [4] [d] [ii]). Specifically,
defendant averred that defense counsel advised him that, if he pleaded
guilty and cooperated with the District Attorney’s office in its
investigation of other criminal matters, he would receive a sentence
of no more than five years of incarceration. Three other people
averred that defense counsel told defendant’s fiancé, mother and
father that defendant would receive “no more than” a five-year
sentence. At the time of the plea, the court informed defendant that
the agreed-upon sentence was a term of incarceration of 10 years, but
noted that it would approve a lesser sentence if one were recommended
by the People “based upon any cooperation [from defendant that the
People] deem[ed] satisfactory and helpful.” After defendant met with
representatives of the District Attorney’s office to fulfill his
                                 -2-                           108
                                                         KA 13-00022

obligation under the cooperation agreement, the court sentenced him to
a term of incarceration of 10 years. According to defendant, defense
counsel miscommunicated to him the level of cooperation necessary for
the People to recommend a lesser sentence and misled him concerning
what his sentence would be if he entered a plea to the indictment.
The affidavits submitted by defendant in support of the motion raise
factual issues that require a hearing (see CPL 440.30 [5]; People v
Frazier, 87 AD3d 1350, 1351). Consequently, we reverse the order and
remit the matter to County Court to conduct a hearing on defendant’s
motion.




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
