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

48
KA 09-01719
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ANDRE PARSONS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ANDRE PARSONS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered July 2, 2009. The order denied the CPL 440.10
motion of defendant without a hearing.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Monroe
County Court for further proceedings in accordance with the following
Memorandum: County Court erred in denying without a hearing
defendant’s motion seeking to vacate the judgment convicting him of,
inter alia, murder in the second degree (Penal Law § 125.25 [1]) on
the grounds that material evidence adduced at his trial was false and
was known by the prosecutor to be false prior to the entry of judgment
and that the judgment was obtained in violation of his due process
rights (see CPL 440.10 [1] [c], [h]). Defendant submitted two
affidavits from a prosecution witness that “tend[ ] to substantiate
all the essential facts” necessary to support defendant’s claims (CPL
440.30 [4] [b]). The People submitted nothing in opposition to the
motion that would require or indeed allow the court to deny the motion
without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court
“was not statutorily authorized to deny defendant’s motion without a
hearing” (People v Baxley, 84 NY2d 208, 214, rearg dismissed 86 NY2d
886; see CPL 440.30 [5]; People v Bates, 144 AD2d 970, 970-971, lv
denied 73 NY2d 919; cf. People v Drake, 256 AD2d 1159, 1160, lv denied
93 NY2d 969; People v Stern, 226 AD2d 238, 240, lv denied 88 NY2d 969,
reconsideration denied 88 NY2d 1072).



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