Opinion
July 17, 1989
Appeal from the County Court, Putnam County (Hickman, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendant's motion which was to set aside the judgment of conviction on the ground of ineffective assistance of appellate counsel and substituting therefor a provision deeming that branch of the motion to be an application for a writ of error coram nobis and transferring that branch of the motion to this court for determination; as so modified, the order is affirmed.
Pursuant to the Court of Appeals determination in People v Bachert ( 69 N.Y.2d 593, 595-596) that "a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel", this court will review de novo the defendant's claim that he was denied the effective assistance of appellate counsel (see, People v Settembre, 152 A.D.2d 682 [decided herewith]).
We are unpersuaded by the defendant's contention that a hearing on his motion to vacate was necessary to develop additional background facts regarding the purported ineffective assistance of pretrial counsel (see, People v Satterfield, 66 N.Y.2d 796; People v Buckley, 139 A.D.2d 589; cf., People v Ferreras, 70 N.Y.2d 630; People v Jenkins, 68 N.Y.2d 896). Given the nature of the claimed ineffective assistance, a hearing was not required since the motion could be considered on the record made before the trial court and the defendant's evidentiary offerings on the motion (see, People v Satterfield, supra, at 798; CPL 440.30).
In the case at bar, the defendant has made no showing that pretrial counsel's failure to serve notice pursuant to CPL 250.10 was not premised on strategy (see, People v Rivera, 71 N.Y.2d 705; People v Satterfield, supra, at 798). Accordingly, the remaining branches of the defendant's motion to vacate the judgment of conviction were properly denied without a hearing. Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.