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

1003
KA 14-00087
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RONALD THOMAS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
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 (Joseph E. Fahey, J.), entered December 18,
2013. The order denied the motion of defendant pursuant to CPL
article 440.

     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: We agree with defendant that County Court erred in
denying without a hearing his motion pursuant to CPL 440.10 to vacate
his judgment of conviction on the ground that he did not receive
effective assistance of counsel. Defendant averred that defense
counsel failed to advise him that he would be sentenced as a
persistent violent felony offender if convicted after a trial, rather
than as a second violent felony offender. Defendant further averred
that he was prejudiced thereby because he would have accepted a plea
offer had he known his actual predicate status. The record indicates
that defense counsel, the court, and the People all failed to realize
until after the trial started, when there were no further plea
negotiations, that defendant would be a persistent violent felony
offender if convicted. We conclude that defendant’s submissions raise
factual issues that require a hearing (see CPL 440.30 [5]; People v
Hill, 114 AD3d 1169, 1170; People v Wimberly, 86 AD3d 651, 652-653;
People v Howard, 12 AD3d 1127, 1127-1128). We therefore reverse the
order and remit the matter to County Court to conduct a hearing on
defendant’s motion.


Entered:    November 10, 2016                      Frances E. Cafarell
                                                   Clerk of the Court
