Opinion
2008-1405 K CR.
Decided January 29, 2010.
Appeal from an order of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), dated June 24, 2008. The order denied defendant's motion to vacate a judgment convicting him, upon his plea of guilty, of driving while ability impaired.
ORDERED that the order is reversed, on the law, defendant's motion to vacate the judgment of conviction is granted, the plea of guilty is vacated, and the matter is remitted to the Criminal Court for all further proceedings.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
Defendant was charged with obstructing governmental administration (Penal Law § 195.05), driving while intoxicated (Vehicle and Traffic Law § 1192) and driving while ability impaired (Vehicle and Traffic § 1192 [1]). At the plea hearing, defendant appeared with counsel and pleaded guilty to driving while ability impaired. Defendant did not appeal from the judgment of conviction. Rather, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, contending that his conviction was obtained in violation of his constitutional rights to due process and to the effective assistance of counsel. Defendant argued that he was not advised of the constitutional rights he was giving up by pleading guilty. He further claimed that his counsel's performance was deficient in that he did not have an opportunity to speak to counsel regarding the charges and that counsel did not know the facts in the case, or any defenses which could have been raised at trial.
The facts underlying the due process claim regarding the plea allocution appear on the face of the record and, thus, may not be raised in a CPL 440.10 motion to vacate the judgment ( see CPL 440.10).
However, the motion to vacate the judgment of conviction should have been granted on the ground that defendant was denied the effective assistance of counsel. Defendant's moving papers established that counsel, in advising defendant to plead guilty without having investigated the facts, researched the law, or developed the record, failed to render meaningful representation ( see People v Van Wie, 238 AD2d 876; see also People v Benevento, 91 NY2d 708, 713; People v Baldi, 54 NY2d 137).
Accordingly, the order is reversed, defendant's CPL 440.10 motion to vacate the judgment is granted, the plea of guilty is vacated, and the matter is remitted to the Criminal Court for all further proceedings.
Pesce, P.J., Golia and Steinhardt, JJ., concur.