Defendant's primary claim is that he was denied the effective assistance of counsel due to counsel's failure to realize and point out his true sentencing status. Because this claim is based on matters outside of the record, a motion pursuant to CPL 440.10 is the appropriate procedural vehicle to raise this challenge ( see People v Mobley, 59 AD3d 741, 742, lv denied 12 NY3d 856; People v Obert, 1 AD3d 631, 632, lv denied 2 NY3d 764; People v Reynolds, 309 AD2d 976, 976; see generally People v Pendelton, 81 AD3d 1037, 1038-1039). Here, the People and defense counsel conducted plea negotiations and entered into a plea agreement, and County Court rendered a sentence, under the assumption that, based upon his 2000 federal conviction, defendant was a violent predicate felon.
Petitioner can still raise this claim via a motion to vacate, under New York Criminal Procedure Law ("C.P.L.") § 440.10, to the Orleans County Court in which he was convicted. A § 440.10 motion is properly raised when that claim is "not demonstrable on the main record," such as a claim that the defendant was fraudulently induced into pleading guilty.People v. Reynolds, 309 A.D.2d 976; 766 N.Y.S.2d 142 (3d Dept. 2003). There is nothing in the plea or sentencing minutes that indicates that such an inducement was made.
Although a motion pursuant to CPL §440.10 is precluded when the issues raised were previously decided on appeal, there exists an exception when the issue raised is ineffective assistance of counsel for an alleged failure to provide proper advice concerning sentencing. Millington v. Lee, 2015 US Dist. LEXIS 38741 [SDNY 2015]; People v. Reynolds, 309 AD2d 976 [3rd Dept. 2003]. A criminal defendant is entitled to the effective assistance of "competent" counsel during all phases of the proceedings brought against him. Strickland v. Washington, 466 US 668 [1984].
A court may deny a CPL 440.10 motion without a hearing, inter alia, where an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all other circumstances of the case, there is no reasonable possibility that such allegation is true (see CPL 440.30[4][d] ). Here, in support of his motion, the defendant submitted an affidavit alleging facts which, if true, would be sufficient to prevail on the motion (see People v. Alomar, 89 A.D.3d 1098, 1099, 933 N.Y.S.2d 591 ; People v. Mobley, 59 A.D.3d 741, 742, 873 N.Y.S.2d 736 ; People v. Reynolds, 309 A.D.2d 976, 976–977, 766 N.Y.S.2d 142 ; People v. Perron, 273 A.D.2d 549, 550, 710 N.Y.S.2d 134 ). Contrary to the Supreme Court's conclusion, the allegations of fact in the defendant's affidavit, including his assertion that he would have accepted the plea offer had he been correctly informed about his sentencing exposure, were corroborated by other evidence.
A court may deny a CPL 440.10 motion without a hearing, inter alia, where an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all other circumstances of the case, there is no reasonable possibility that such allegation is true (see CPL 440.30[4][d]). Here, in support of his motion, the defendant submitted an affidavit alleging facts which, if true, would be sufficient to prevail on the motion (see People v Alomar, 89 AD3d 1098, 1099; People v Mobley, 59 AD3d 741, 742; People v Reynolds, 309 AD2d 976, 976-977; People v Perron, 273 AD2d 549, 550). Contrary to the Supreme Court's conclusion, the allegations of fact in the defendant's affidavit, including his assertion that he would have accepted the plea offer had he been correctly informed about his sentencing exposure, were corroborated by other evidence. The court therefore erred in denying the defendant's motion without a hearing.
Upon review, we agree that his contentions are sufficient to raise questions of fact requiring a hearing ( see CPL 440.30[1]; People v. Wimberly, 86 A.D.3d 651, 652, 926 N.Y.S.2d 718 [2011]; People v. Reynolds, 309 A.D.2d 976, 977, 766 N.Y.S.2d 142 [2003], lv. denied 5 N.Y.3d 832, 804 N.Y.S.2d 46, 837 N.E.2d 745 [2005] ). Defendant's conviction arose out of his possession of a Social Security card issued in a name other than his own. He asserts that he had assumed the name on the card and had been using it as his own for a period of years with no fraudulent intent. In opposing the motion, the People did not controvert defendant's claim that he had assumed the name, although they questioned his motivation for doing so; moreover, they did not claim that he possessed the Social Security card “with intent to defraud, deceive or injure another” (Penal Law § 170.25).
Here, the primary claim raised by the defendant's motion is that the attorney who represented him at the time of his February 2000 plea did not provide effective assistance because the attorney erroneously advised him that a youthful offender adjudication could not be used to enhance any future sentence. Since this claim is based on advice the defendant allegedly was given by his attorney rather than facts which would appear on the record, it is of the type which may be properly raised within the context of a motion pursuant to CPL 440.10 ( see People v Mobley, 59 AD3d 741; People v Reynolds, 309 AD2d 976; People v Perron, 273 AD2d 549, 550; see also People v Pierre, 80 AD3d 441, 442, lv denied 16 NY3d 862). Accordingly, the defendant's motion was not procedurally barred by CPL 440.10 (2) (c). Under these circumstances, we remit the matter to the Supreme Court, Queens County, for a new determination of the defendant's motion on the merits, which should include a determination as to whether the allegations set forth in the defendant's affidavit are sufficient to warrant a hearing on the issue of whether his attorney was ineffective because of the attorney's alleged affirmative misstatements about the consequences of the youthful offender adjudication ( see People v White, 67 AD3d 933, 934; People v Radcliffe, 298 AD2d 533, 534).
Here, while most of defendant's allegations of ineffective assistance of counsel are based on matters in the record and could have been resolved — but were not raised — on direct appeal ( 41 AD3d at 891-892), defendant was represented on direct appeal by the same attorney he retained to represent him during his trial. Under these circumstances, the court should not have denied defendant's motion pursuant to CPL 440.10 (2) (c) because counsel's failure to raise his own ineffectiveness on direct appeal was not "unjustifiable" (CPL 440.10 [c]; see People v Harris, 109 AD2d 351, 360 n 364 [1985], lv denied 66 NY2d 919; see also People v Reynolds, 309 AD2d 976, 977). Turning to the merits, we first address defendant's assertion that counsel improperly advised him of the consequences of rejecting a plea offer made by the People.
Critically, a defendant who has accepted the assistance of counsel nevertheless retains authority over certain fundamental decisions regarding the case, including whether to testify in his or her own behalf ( see People v Colon, 90 NY2d 824, 825-826; People v Ferguson, 67 NY2d 383, 390; see also Jones v Barnes, 463 US 745, 751). Defendant's affidavit also sets forth the essence of his proposed testimony and how it may have undermined the victim's credibility. Upon these facts, we are persuaded that defendant has raised an issue sufficient to require a hearing on his CPL 440.10 motion ( see People v Reynolds, 309 AD2d 976, 976-977; People v Thomson, 279 AD2d 644, 645; People v Perron, 273 AD2d 549, 550; People v Mattison, 182 AD2d 917, 919, lv denied 80 NY2d 896). Defendant's remaining contentions do not require extended discussion.
However, the matter must be remitted to the County Court, Nassau County, for a hearing and new determination of that branch of the defendant's motion pursuant to CPL 440.10 which was to vacate the judgment on the ground that the defendant was denied the effective assistance of counsel based on trial counsel's alleged failure to accurately inform him of the maximum sentence he faced in the event he chose to reject a particular plea offer made by the People and was convicted after trial. In support of his claim, which is of a type properly raised within the context of a motion pursuant to CPL 440.10, the defendant submitted an affidavit alleging certain facts, which, if true, would be sufficient to prevail on that claim ( see United States v Gordon, 156 F3d 376, 379-381; People v Reynolds, 309 AD2d 976, 976-977; People v Perron, 273 AD2d 549, 550; see also People v Radcliffe, 298 AD2d 533, 534-535). The People failed to address that claim when opposing the motion.