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

970
KA 10-00535
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH FRAZIER, DEFENDANT-APPELLANT.


ARLOW M. LINTON, ROCHESTER, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING 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 Supreme Court, Erie County (Penny M. Wolfgang, J.), dated August
14, 2009. The order denied defendant’s CPL 440.10 motion.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Erie County, for further proceedings in accordance with the
following Memorandum: Supreme Court erred in denying without a
hearing defendant’s motion pursuant to CPL 440.10 (1) (h) to vacate
the judgment convicting him of three counts of burglary in the first
degree (Penal Law § 140.30 [2]-[4]) on the ground that he was denied
his constitutional right to effective assistance of counsel. In
support of the motion, defendant submitted his sworn statement
asserting that trial counsel failed to inform him that a plea offer
had been made and further asserting that he was prejudiced thereby
because he would have accepted the offer. In addition, defendant
submitted an affidavit from the prosecutor at his trial who recalled
the specific terms of the plea offer, i.e., the reduced charge to
which defendant was permitted to plead guilty and the trial court’s
sentencing commitment. We agree with defendant that his submissions
“support[] his contention that he was denied effective assistance of
counsel . . . and raise[] a factual issue that requires a hearing”
(People v Howard, 12 AD3d 1127, 1128; see People v Sherk, 269 AD2d
755, lv denied 95 NY2d 804).

     Contrary to the People’s contention, the submissions of defendant
in support of the motion were not “conclusively refuted by
unquestionable documentary proof” (CPL 440.30 [4] [c]). The
memorandum purportedly authored by the prosecutor at defendant’s trial
merely suggests that defendant was aware of a plea offer prior to
trial but does not conclusively refute defendant’s allegations to the
contrary, nor is it sworn or even signed. Moreover, we do not agree
                                 -2-                           970
                                                         KA 10-00535

with the court that defendant’s submissions in support of the motion
consist of factual allegations “made solely by the defendant and . . .
unsupported by other affidavit or evidence” (CPL 440.30 [4] [d]; cf.
People v Gunney, 13 AD3d 980, 983, lv denied 5 NY3d 789; People v
Spencer, 272 AD2d 682, 685-686, lv denied 95 NY2d 858). We therefore
reverse the order and remit the matter to Supreme Court to conduct a
hearing on defendant’s motion.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
