         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
12
KA 08-02049
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN M. CAMPBELL, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, 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 Steuben County Court (Joseph W. Latham, J.), entered July 1, 2008.
The order denied the motion of defendant to vacate his judgment of
conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the case is held, the decision is
reserved, and the matter is remitted to Steuben County Court for
further proceedings in accordance with the following Memorandum:
Defendant appeals from an order summarily denying his motion pursuant
to CPL 440.10 seeking to vacate the judgment convicting him upon his
plea of guilty on the seventh day of the trial of, inter alia, two
counts of murder in the second degree (Penal Law § 125.25 [1], [3]).
Defendant contends that he was denied effective assistance of counsel
based, inter alia, upon the failure of his trial counsel to inform him
of potentially exculpatory evidence, i.e., that before the murder an
inmate at a state prison had advised the District Attorney that he had
information concerning a plot to murder the victim that implicated
persons other than defendant. According to defendant’s affidavit
submitted in support of the CPL 440.10 motion, which in turn is
supported by the correspondence between the inmate and the District
Attorney, defendant would not have pleaded guilty if he had been aware
of that evidence. We agree with defendant that County Court erred in
denying his motion without conducting a hearing.

     It is undisputed that defendant’s trial counsel had obtained an
“open file” discovery arrangement with the District Attorney and that
the correspondence was included in the file. Despite the fact that
counsel representing defendant on the CPL 440.10 motion asked
defendant’s trial counsel to provide an affidavit setting forth what
he knew and what he had advised defendant about the information in
that correspondence, trial counsel failed to provide the affidavit.
We thus conclude that the court erred in failing to conduct a hearing
                                 -2-                            12
                                                         KA 08-02049

inasmuch as defendant raised an issue of fact whether defendant’s
trial counsel was aware of the potentially exculpatory evidence and
whether he advised defendant about that evidence (cf. People v Waymon,
65 AD3d 708, 709, lv denied 13 NY3d 857, 863). We further conclude
that defendant’s assertion of ineffective assistance of counsel has
not been “conclusively refuted by documentary evidence” (People v
Session, 34 NY2d 254, 256), although we note that an appendix to the
People’s brief and portions of the brief were stricken by order of
this Court entered December 2, 2010 because they addressed matters
outside the record. We therefore conclude, based upon the record
before us, that “ ‘a hearing should be held to promote justice
[because] the issues raised by the motion are sufficiently unusual and
suggest searching investigation’ ” (People v Ausserau, 77 AD2d 152,
155, quoting People v Crimmins, 38 NY2d 407, 416; see People v
Kearney, 78 AD3d 1329; People v Nicholson, 222 AD2d 1055, 1057).
Thus, we hold the case, reserve decision and remit the matter to
County Court to conduct a hearing to determine what defendant’s trial
counsel knew about the alleged potentially exculpatory evidence and
whether he related that information to defendant.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
