Opinion
No. 2010–2491 Q CR.
2013-01-8
The PEOPLE of the State of New York, Respondent, v. Charles JOHNSON, Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal, by permission, from an order of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), dated June 14, 2010. The order, without a hearing, denied defendant's motion, pursuant to CPL 440.10(1)(h), to vacate the judgment convicting him, upon his plea of guilty, of disorderly conduct.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant's motion to vacate the judgment of conviction.
In May 2009, defendant, along with two co-defendants, was charged with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1] ) and unlawful possession of marihuana (Penal Law § 221.05). In satisfaction of the charges, defendant pleaded guilty to disorderly conduct (Penal Law § 240.20) and was sentenced to a conditional discharge. Thereafter, defendant moved, pursuant to CPL 440.10(1)(h), to vacate the judgment of conviction on the ground that he had received the ineffective assistance of counsel. Without holding a hearing, the Criminal Court denied defendant's motion.
Upon a review of the record, we find that the allegations set forth in defendant's affidavit in support of his CPL 440.10(1)(h) motion are sufficient to warrant a hearing ( see People v. Lange, 21 Misc.3d 6 [App Term, 9th & 10th Jud Dists 2008], lv denied11 NY3d 855 [2008];People v. Michael, 16 Misc.3d 84 [App Term, 9th & 10th Jud Dists 2007]; see also People v. Mobley, 59 AD3d 741 [2009] ).
Accordingly, the order is reversed and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant's motion to vacate the judgment of conviction.