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

264
KA 14-01407
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DERRICK L. HALL, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered March 27, 2013. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree
(two counts).

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Niagara County Court for
further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon his plea of
guilty of two counts of assault in the second degree (Penal Law
§ 120.05 [2]). The plea was in satisfaction of an indictment charging
assault in the first degree, assault in the second degree, and
criminal possession of a weapon in the third degree. Defendant
contends that County Court abused its discretion in denying his motion
to withdraw his plea because it was coerced and was not knowingly,
intelligently and voluntarily entered owing to the ineffective
assistance of counsel. We note at the outset that, even assuming,
arguendo, that the waiver of the right to appeal is valid, we
nevertheless agree with defendant that his contention survives the
plea and the waiver of the right to appeal to the extent that
defendant contends that “the plea bargaining process was infected by
[the] allegedly ineffective assistance or that [he] entered the plea
because of [his] attorney[’s] allegedly poor performance” (People v
Gleen, 73 AD3d 1443, 1444, lv denied 15 NY3d 773 [internal quotation
marks omitted]; see People v Davis, 119 AD3d 1383, 1383, lv denied 24
NY3d 960; People v Judd, 111 AD3d 1421, 1422-1423, lv denied 23 NY3d
1039).

     In a letter to the court, defendant alleged that defense counsel
forced him to accept the plea offer by informing him, inter alia, that
if convicted after trial, the court would sentence him to a term
exceeding 20 years. Defense counsel thereafter filed a motion to
                                 -2-                           264
                                                         KA 14-01407

withdraw the plea, asserting that “the [p]lea was taken under coercive
conditions,” inasmuch as “[d]efendant was left with the impression
that if he did not plead guilty a consecutive sentence would be
imposed for each count contained in the indictment should he be found
guilty after trial.” At the argument of the motion, defense counsel
further stated that he did not represent to defendant that consecutive
sentences were a possibility, but rather a certainty. The court
denied the motion without a hearing and imposed the agreed-upon
sentence.

     “It is well settled that permission to withdraw a guilty plea
rests largely within the court’s discretion” (People v Henderson, 137
AD3d 1670, 1670). While an evidentiary hearing is required only in
rare instances (see People v Tinsley, 35 NY2d 926, 927), “[w]here, [as
here,] the record raises a legitimate question as to the voluntariness
of the plea, an evidentiary hearing is required” (People v Brown, 14
NY3d 113, 116). We agree with defendant that the statements of
defense counsel presenting lengthy consecutive sentences as a
certainty were erroneous, at least in part, and did not simply “amount
to a description of the range of the potential sentences” (People v
Flinn, 60 AD3d 1304, 1305; cf. People v Bruchanan, 37 AD3d 169, 169,
lv denied 8 NY3d 982). However, we cannot determine whether, under
the totality of the circumstances, defendant was denied effective
assistance of counsel, inasmuch as the record fails to establish
whether defendant would have entered the guilty plea if he had been
properly advised (see People v Molina, 69 AD3d 960, 961; see generally
People v Bonilla, 6 AD3d 1059, 1060). We therefore conclude that a
hearing is required to resolve that issue, and we hold the case,
reserve decision, and remit the matter to County Court for that
purpose.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
