People v Horos

[*1] People v Horos 2007 NY Slip Op 51245(U) [16 Misc 3d 1103(A)] Decided on June 22, 2007 Sullivan County Ct LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 22, 2007
Sullivan County Ct

The People of the State of New York

against

Steven G. Horos, Defendant.



1931-07



Joel M. Proyect, Esq.

P.O. Box 157

Parksville, NY 12768

Attorney for Defendant

Hon. Stephen F. Lungen

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, NY 12701

By: Joey Z. Drillings, ADA, of counsel

Attorney for the People

Frank J. LaBuda, J.

Defendant was convicted by plea on December 5, 2005 of a class A misdemeanor in satisfaction of numerous charges including at least one felony.

In January, 2006 defendant was suspended from his employment pending a hearing to terminate said employment based upon his December 5, 2005 misdemeanor conviction.

Thereafter, defendant moved to vacate his judgment based upon ineffective assistance of counsel alleging that his counsel specifically advised him that the misdemeanor conviction would not have any effect on his employment and except for this advice he would have rejected the plea agreement and gone to trial. [*2]

The 440 Court by Decision dated January 3, 2007 denied defendant's motion to vacate his judgment without a hearing.

Defendant argues that the Justice Court's January 3, 2007 Decision to deny 440 relief should overturned in that; 1. the Justice Court should have summarily vacated his judgment based upon ineffective assistance of counsel case law or 2. should have held an evidentiary hearing before rendering a decision.

The purpose of a 440 motion is to inform the court as to factual issues not contained on the record. People v Saunders, 301 AD2d 869 (3rd Dept., 2003).

The federal standard to vacate a judgment for ineffective assistance of counsel requires a two part analysis that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different.

See, Strickland v Washington, 466 US 668 (1984).

Under New York law, a two prong analysis is examined in more general terms, 1. whether the defendant recieved meaningful representation, See, People v Henry, 95 NY2d 563 (2000); People v Benevento, 91 NY2d 708 (1998), and 2. by replacing the federal Strickland "but for" prong (that the results would be different) to an analysis that there is a reasonable probability that "but for" counsels error the defendant would not have taken a plea but would have gone to trial instead. See, People v McDonald, 1 NY3d 109 (2003); People v Salazar, 2006 NY slip op 51647U (Crim. Ct. City of NY, 2006).

In both McDonald, supra and Salazar, supra the courts found, if an attorney gives incorrect advice, as opposed to no discussion at all, regarding immigration status, coupled with a reasonable probability that defendant would not have pled guilty but would have gone to trial, is substandard representation and may have been ineffective assistance of counsel.

In determining a 440 motion the Court may summarily deny said motion under circumstances found in CPL 440.30(2) or 440.30(4) or summarily grant said motion under circumstances found in 440.30(3).

If no circumstances are present to summarily deny or grant said motion under CPL 440.30 (2), (3) or (4), the Court must hold an evidentiary hearing pursuant to CPL 440.30(5).

In the case at bar, there are no circumstances under either CPL 440.30(2)(3) or (4) which would allow summary denial or granting of the 440 motion without a hearing and the written submissions and record are insufficient to decide the 440 motion

without an evidentiary hearing pursuant to 440.30(5). [*3]

Based upon the above, it is

ORDERED, that defendant's appeal is granted, and it is further

ORDERED, that the Decision dated January 3, 2007 from the Town of Fallsburg Justice Court denying defendant's 440 motion is vacated, and it is further

ORDERED, that the within 440 motion is remanded back to the Town of Fallsburg Justice for an evidentiary hearing and subsequent decision.

This shall constitute the Decision and Order of this Court.

DATED: June 22, 2007

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate