In People v. Simon (App. Term 1st Dept. Aug. 31, 2011), the trial court granted (without a hearing) the Defendant's 440 motion, alleging ineffective assistance of counsel. The Appellate Term found this was error.
The Defendant alleged that he would not have pleaded guilty had his previous attorney not erroneously advised him to do so. The Defendant included his own affidavit and an affirmation from his current attorney. However, he did not obtain an affirmation from his previous attorney. Since the People did not concede the facts giving rising to the 440 claim, it was error to grant the 440 motion without a hearing. (LC)