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

450
KA 12-00584
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TWAN CONWAY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
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 (Russell P. Buscaglia, A.J.), dated
January 30, 2012. The order denied the motion of defendant to vacate
the judgment of conviction 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 Supreme
Court, Erie County, for further proceedings in accordance with the
following Memorandum: Defendant appeals from an order that summarily
denied his motion pursuant to CPL 440.10 seeking to vacate the
judgment convicting him upon his plea of guilty of attempted burglary
in the second degree (Penal Law §§ 110.00, 140.25 [2]). This Court
previously affirmed the judgment of conviction (People v Conway, 43
AD3d 635, lv denied 9 NY3d 990). We note at the outset that
defendant’s brief addresses only his claims concerning actual
innocence and ineffective assistance of counsel, and we thus deem
abandoned his contention that the People committed a Brady violation
(see People v Hoffler, 74 AD3d 1632, 1633 n 2, lv denied 17 NY3d 859;
see also People v Dombrowski, 87 AD3d 1267, 1267).

     We reject defendant’s contention that he was entitled to a
hearing on his claim of actual innocence. Although the court erred in
determining that a claim of actual innocence may not properly be
raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d
12, 15), the court properly determined that defendant’s claim of
actual innocence was “belied by his admission of guilt during the plea
colloquy” (People v Conde, 34 AD3d 1347, 1347; see People v Garner, 86
AD3d 955, 955; see also People v Crawford, 106 AD3d 832, 833, lv
denied 21 NY3d 1014). Indeed, “[t]he ‘solemn act’ of entering a plea,
itself sufficing as a conviction, . . . should not be permitted to be
used as a device for a defendant to avoid a trial while maintaining a
                                 -2-                           450
                                                         KA 12-00584

claim of factual innocence” (People v Plunkett, 19 NY3d 400, 406,
quoting People v Thomas, 53 NY2d 338, 345).

     With respect to defendant’s claim of ineffective assistance of
counsel, however, we conclude that nonrecord facts may support
defendant’s contention that his trial counsel unreasonably refused to
investigate two potential alibi witnesses and the statements of a
third party admitting to the crime, and that trial counsel’s
ineffectiveness subsequently rendered defendant’s plea involuntary.
We therefore reverse the order and remit the matter to Supreme Court
to conduct a hearing pursuant to CPL 440.30 (5) on defendant’s claim
of ineffective assistance of counsel.

     Preliminarily, although we previously rejected on direct appeal
defendant’s contention that he was denied effective assistance of
counsel (see Conway, 43 AD3d at 636), we note that his present
contention is properly raised by way of a motion pursuant to CPL
440.10 because it concerns matters outside the record that was before
us on his direct appeal (see generally People v Russell, 83 AD3d 1463,
1465, lv denied 17 NY3d 800). We also note that, although defendant
contended in his CPL 440.10 motion that his federal “Sixth Amendment
right to effective assistance of counsel was denied,” defendant’s
reliance upon New York jurisprudence demonstrates his intent to invoke
the greater protection afforded by the New York Constitution, and we
therefore address his claim of ineffective assistance of counsel in
that context.

     It is well settled that “[a] defendant’s right to effective
assistance of counsel includes defense counsel’s reasonable
investigation and preparation of defense witnesses” (People v Jenkins,
84 AD3d 1403, 1408, lv denied 19 NY3d 1026; see People v Mosley, 56
AD3d 1140, 1140-1141; People v Nau, 21 AD3d 568, 569). Here,
defendant’s CPL 440.10 motion was supported by the affidavits of the
two alibi witnesses, and of defendant’s prior attorney, who allegedly
obtained a tape recording of the third-party admission. While a
hearing may ultimately reveal that subsequent “counsel made reasonably
diligent efforts to locate the [alibi] witness[es]” and the third
party (People v Gonzalez, 25 AD3d 357, 358, lv denied 6 NY3d 833), or
that there was a strategic reason for her failure to do so (see People
v Coleman, 10 AD3d 487, 488), 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 Frazier, 87 AD3d 1350, 1351).

     Finally, we reject the People’s contention that the allegations
of fact essential to support defendant’s motion were “conclusively
refuted by unquestionable documentary proof” (CPL 440.30 [4] [c]).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
