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

870
KA 13-00399
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RONALD D. ROSSBOROUGH, DEFENDANT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RONALD D. ROSSBOROUGH, DEFENDANT-APPELLANT PRO SE.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT (AMANDA B. FINN 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 Allegany County Court (Thomas P. Brown, J.), entered January 11,
2013. The order denied defendant’s motion pursuant to CPL 440.10 to
vacate the judgment convicting defendant of burglary in the second
degree.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Allegany
County Court for further proceedings in accordance with the following
Memorandum: Defendant appeals by permission of this Court from an
order denying his pro se motion pursuant to CPL article 440 seeking to
vacate the judgment convicting him upon his plea of guilty of burglary
in the second degree (Penal Law § 140.25 [2]). We previously affirmed
that judgment of conviction (People v Rossborough, 105 AD3d 1332, lv
denied 21 NY3d 1045).

     Defendant contends that he was denied effective assistance of
counsel because defense counsel failed to conduct an adequate
investigation into the facts and failed to move to suppress his
statement to the police. A defendant’s right to effective assistance
of counsel includes defense counsel’s reasonable investigation (see
People v Jenkins, 84 AD3d 1403, 1408, lv denied 19 NY3d 1026), and the
failure to investigate may amount to ineffective assistance of counsel
(see People v Kurkowski, 117 AD3d 1442, 1443). The failure to move
for suppression may seriously compromise a defendant’s right to a fair
trial such that it may also qualify as ineffective representation (see
People v Hobot, 84 NY2d 1021, 1022; see also People v Flores, 84 NY2d
184, 188; People v Baldi, 54 NY2d 137, 146-147). Here, we conclude
that defendant alleged in support of his motion facts that did not
                                 -2-                           870
                                                         KA 13-00399

appear in the record on his direct appeal, and which, if established
as true, could entitle him to the relief sought (see People v Nau, 21
AD3d 568, 569). We therefore reverse the order, and we remit the
matter to County Court to conduct a hearing on defendant’s claim of
ineffective assistance of counsel pursuant to CPL 440.30 (5) (see
People v Conway, 118 AD3d 1290, 1291).

     With respect to defendant’s contention that his plea was rendered
involuntary by his use of medication, we conclude that defendant
sustained his “burden of coming forward with allegations sufficient to
create an issue of fact” whether the judgment is invalid on that
ground (People v Session, 34 NY2d 254, 255-256). We agree with
defendant that an evidentiary hearing is “required to determine the
extent to which his mental capacity was impaired and whether this
rendered him unable to enter a knowing, voluntary and intelligent
guilty plea” (People v Hennessey, 111 AD3d 1166, 1168). We therefore
further direct County Court to address that issue at the hearing on
remittal (see id.).

     With respect to the contention raised in defendant’s pro se
supplemental brief that his right to counsel was violated, we conclude
that the court properly denied the motion without a hearing inasmuch
as defendant’s appeal was pending and “sufficient facts appear[ed] on
the record with respect to [that contention] to permit adequate review
thereof upon such . . . appeal” (CPL 440.10 [2] [b]; see People v
Cooks, 67 NY2d 100, 104). Contrary to defendant’s further contention
raised in his pro se supplemental brief, the court properly denied
without a hearing that part of his motion based on the alleged failure
of the People to disclose three supporting depositions (see Brady v
Maryland, 373 US 83). Evidence is not Brady material as a matter of
law when a defendant has knowledge of its existence (see People v
Banks, 130 AD2d 498, 499, lv denied 70 NY2d 709; see also People v
Fein, 18 NY2d 162, 170, cert denied 385 US 649; People v Buxton, 189
AD2d 996, 997, lv denied 81 NY2d 1011). Here, even assuming,
arguendo, that the supporting depositions were not provided to
defendant or his counsel prior to his plea, we conclude that the
record contained sufficient facts establishing that the supporting
depositions were specifically identified and referenced in the
accusatory instruments, which were provided to defendant at the time
of arraignment. Thus, there were sufficient record facts for review
of the Brady issue on direct appeal (see CPL 440.10 [2] [b]).

     Finally, to the extent that defendant has failed to address the
remaining grounds advanced in support of his CPL 440.10 motion, we
deem any contentions with respect thereto abandoned (see People v
Witkop, 114 AD3d 1242, 1243-1244, lv denied 23 NY3d 1069; People v
Dombrowski, 87 AD3d 1267, 1267).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
