           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
946
KA 11-02059
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DEMETRIUS COOPERWOOD, DEFENDANT-APPELLANT.


WILLIAM H. GARDNER, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS 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 Erie County Court (Sheila A. DiTullio, J.), dated September 6,
2011. The order denied the CPL 440.10 motion of defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Erie
County Court for a hearing on the motion 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, of two counts of
robbery in the first degree (Penal Law § 160.15 [4]). According to
defendant, defense counsel failed to advise him of the need for
corroboration of a codefendant’s testimony or a potentially viable
affirmative defense related to the operability of the firearms used in
the robberies (see generally CPL 60.22; Penal Law § 160.15 [4]).
Defendant contended that he would not have pleaded guilty had he known
of those legal issues (see People v Liggins, 56 AD3d 1265, 1265-1266).
Here, as in Liggins, “[d]efendant further contended in support of his
motion that the goal of defense counsel from the outset of the
prosecution was to dispose of the charges by way of a plea of guilty,
and that defense counsel consequently failed to pursue . . . viable
[legal] challenge[s]” to the evidence against defendant (id. at 1266).
We thus conclude that defendant raised issues of fact in support of
his motion and that County Court erred in denying his motion without
conducting a hearing. We therefore reverse the order and remit the
matter to County Court for a hearing on defendant’s motion consistent
with our decision.



Entered:   September 28, 2012                      Frances E. Cafarell
                                                   Clerk of the Court
