Opinion
8594, 8594A.
May 30, 2006.
Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered January 20, 2004, as amended March 8, 2005, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of eight years, held in abeyance, and the matter remanded for further proceedings on defendant's motion to vacate the judgment, as provided herein. Order, same court and Justice, entered on or about January 20, 2004, which denied defendant's motion to vacate the judgment, unanimously reversed, on the law and as a matter of discretion in the interest of justice, the order vacated and the matter remanded for further proceedings on defendant's motion to vacate the judgment, as provided herein.
Sgarlato Sgarlato, PLLC, Staten Island (Katherine R. Goldberg of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Karen Schlossberg of counsel), for respondent.
Before: Tom, J.P., Mazzarelli, Andrias, Marlow and Malone, JJ., concur.
Based on our review of the trial record and the submissions on defendant's motion alleging ineffective assistance of counsel, we conclude that under the circumstances presented, both parties should have the opportunity to make further submissions pursuant to CPL 440.10 for consideration by the motion court, which may address, among other issues, the reason trial counsel refrained from moving to suppress physical evidence.