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

531
KA 14-00314
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDDIE WASHINGTON, DEFENDANT-APPELLANT.


EDDIE WASHINGTON, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
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 Onondaga County Court (Thomas J. Miller, J.), dated January 14,
2014. The order denied the motion of defendant pursuant to CPL
440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Onondaga
County Court for a hearing pursuant to CPL 440.30 (5).

     Memorandum: Defendant appeals from an order summarily denying
his motion pursuant to CPL 440.10 seeking to vacate the judgment
convicting him of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]). The weapon was recovered from underneath
the front passenger seat of a vehicle that the police had stopped for
an alleged violation of Vehicle and Traffic Law § 375 (40). The
driver was issued uniform traffic tickets for violations of sections
375 (40) and 511 (1) (a), and defendant, who was the front seat
passenger, was charged in connection with the weapon. The traffic
tickets against the driver were ultimately dismissed. Defendant
contends that they were dismissed because City Court found that the
stop of the vehicle was illegal.

     Defense counsel moved to suppress the weapon, but defendant
contends that defense counsel was ineffective for failing to
investigate the stop, failing to call the driver as a witness at the
suppression hearing, failing to cross-examine the police officer who
stopped the vehicle concerning prior inconsistent statements and
failing to obtain and utilize a police photograph allegedly
establishing that the officer’s claims with respect to the basis for
the stop were false. County Court denied the suppression motion, and
defendant contended in support of his CPL 440.10 motion, which was
decided by the same County Court Judge, that he pleaded guilty “[d]ue
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                                                         KA 14-00314

to the ineffective assistance provided by [trial counsel].”

     We agree with defendant that the court erred in denying his CPL
440.10 motion without conducting a hearing. Attached to defendant’s
motion was an affidavit from the driver establishing that the rear
lamp had been cracked, that she covered it with red tape on the advice
of another police officer and that the light emanating from the lamp
was red in accordance with the provisions of Vehicle and Traffic Law §
375 (40). The driver further stated that she informed defendant’s
attorney of the dismissal of the traffic tickets and provided him with
supporting documentation. That documentation was also attached to
defendant’s motion and included a photograph establishing that the
lamp in question emitted a red light. The driver was present in court
on the day of the suppression hearing, but was never called to
testify. According to the court’s decision on the suppression motion,
the only witness to testify at the suppression hearing was the police
officer, who testified that, when the driver stepped on the brake,
“the only light visible from the lamp was white.” In the officer’s
narrative statement, which was also attached to defendant’s motion,
the officer wrote that he stopped the vehicle because “the stop lamp
was out.”

     Contrary to the People’s contention, defendant is not challenging
the ruling on the suppression motion, which could be raised on the
pending direct appeal and would thus require denial of the CPL 440.10
motion (see CPL 440.10 [2] [b]). Moreover, he is not contending that
the court was required to grant suppression under the doctrine of
collateral estoppel. Rather, defendant’s main contention is that
“defense counsel’s failure to develop a sufficient factual record at
the suppression hearing constitutes ineffective assistance of counsel.
Because that contention rests upon matters outside the record, . . .
‘the appropriate vehicle by which to obtain review of [that
contention] is through the commencement of a proceeding pursuant to
CPL article 440’ ” (People v Simmons, 221 AD2d 994, 994, lv denied 88
NY2d 885).

     Contrary to the further contention of the People, defendant’s
failure to submit an affidavit from trial counsel is not fatal to the
motion. “[D]efendant’s application is adverse and hostile to his
trial attorney. To require the defendant to secure an affidavit, or
explain his failure to do so, [would be] wasteful and unnecessary”
(People v Radcliffe, 298 AD2d 533, 534; see generally People v
Campbell, 81 AD3d 1251, 1251).

     Here, as with many possessory offenses, “suppression was the only
viable defense strategy” (People v Layou, 114 AD3d 1195, 1198; see
generally People v Clermont, 22 NY3d 931, 933-934), inasmuch as
defendant’s guilt follows directly from the seizure of the weapon.
Based on the evidence in the record, “we can discern no tactical
reason for trial counsel’s failure to call [the driver] to testify,”
failure to investigate the dismissal of the driver’s tickets on the
ground that the stop was illegal, and failure to introduce a
photograph that refuted the officer’s allegations (People v
Dombrowski, 87 AD3d 1267, 1268; see Clermont, 22 NY3d at 933-934;
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                                                         KA 14-00314

People v Barber, 124 AD3d 1312, 1314). Indeed, it appears that here,
as in Clermont, defense counsel “never supplied the hearing court with
any legal rationale for granting suppression” (22 NY3d at 933). This
is not a situation in which defendant’s allegations are unsupported by
other evidence and there is no reasonable possibility that his
allegations are true (cf. People v Santana, 101 AD3d 1664, 1664-1665,
lv denied 20 NY3d 1103). We thus conclude that “a hearing is required
to afford defendant’s trial counsel an opportunity . . . to provide a
tactical explanation for the omission[s]” (Dombrowski, 87 AD3d at 1268
[internal quotation marks omitted]; see Campbell, 81 AD3d at 1252).
Consequently, we reverse the order and remit the matter to County
Court to conduct a hearing on defendant’s CPL 440.10 motion (see e.g.
People v Conway, 118 AD3d 1290, 1291).




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
