Opinion
570998/02.
Decided February 25, 2004.
Defendant appeals 1) from a judgment of the Criminal Court of the City of New York, Bronx County, rendered May 29, 2002 after a nonjury trial (Larry R.C. Stephen, J.) convicting him of attempted assault in the third degree (Penal Law §§ 110.00/120.00[1]) and harassment in the second degree (Penal Law § 240.26), and imposing sentence, and 2) from an order of the same court and Judge dated December 20, 2002, which denied defendant's motion to vacate the aforesaid judgment pursuant to CPL 440.10.
Order dated December 20, 2002 (Larry R.C. Stephen, J.) reversed, on the law, and the matter remanded for a hearing and decision de novo on defendant's CPL 440.10 motion.
Appeal from judgment of conviction rendered May 29, 2002 (Larry R.C. Stephen, J.) held in abeyance pending determination of defendant's motion to vacate as specified herein.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Defendant's CPL 440.10 motion to vacate the judgment of conviction should not have been summarily denied without a hearing. On the record before us, an issue of fact exists as to whether trial counsel's failure to seek dismissal of the information on statutory speedy trial grounds was based on a "legitimate and reasonable strategy" ( People v. Benevento, 91 NY2d 708, 713) or, instead, was the result of the attorney's neglect of the case prior to trial. The trial court's stated conclusion that, based, inter alia, on the defendant's "employment status," trial counsel " may have sought outright vindication at trial rather than a dismissal on a technicality" (emphasis added), was speculative and unsupported by record evidence. Particularly given the absence from the existing record of any competent evidence bearing on trial counsel's possible strategic choice, the issue "cannot be resolved on [papers] alone, but only after a hearing at which testimony is received, affording the court a basis on which to make credibility determinations." ( People v. Smith, 301 AD2d 471, 473.) Nor can it be said on the present record that defendant's speedy trial claim lacks any colorable merit ( cf., People v. Mackenzie, 233 AD2d 101), especially in light of the prosecution's appellate concession that, contrary to its calculations advanced below and "incorporate[d]" in the trial court's decision, at least 84 days out of the allotted 90-day statutory period are properly chargeable for speedy trial purposes.
Since proper determination of defendant's motion to vacate the conviction called for factual findings that cannot summarily be made, we remand the matter to the trial court for a hearing and decision de novo on the motion. We have considered and find unavailing defendant's remaining argument in support of his appeal from the denial of the motion to vacate.
This constitutes the decision and order of the court.