Factual Background: Defendant was accused of killing his wife.  He was questioned at his home and at the police barracks and search warrants were executed relating to his house and car.  Zeh hired a lawyer who never made a motion to suppress either the statements or the physical evidence.  Following his second-degree murder conviction the Appellate Division affirmed, but remarked that issues relating to the adequacy of counsel’s performance could be raised via C.P.L. §440.10.  Defendant brought a 440 motion alleging ineffective assistance and his prior attorney provided an affidavit to the prosecution setting forth that the alleged deficiencies in performance were part of his overall strategy.  The trial court denied the 440 summarily and the Appellate Division affirmed.

 

Issue before the Court:  whether the summary denial of the 440 motion was warranted in light of counsel’s affidavit explaining a strategic basis for his alleged mistakes.

 

Held: the courts below should have granted an evidentiary hearing based on the record and the allegations set forth in the 440 motion papers.  The attorney’s affirmation, that he did not request suppression because he believed his client would have to testify, did not adequately explain the absence of a motion to suppress based on the 26 hour detention and the police refusal to contact a lawyer who represented Zeh on an unrelated matter.  Counsel’s affirmation also did not address several alleged mistakes made during the trial.

 

CAL observes: The Court recognizes the import of an evidentiary  hearing into substantive claims of ineffective assistance of counsel which should not be defeated merely through an attorney’s submission of a self-serving post hoc justification for his challenged actions.  Here, the motion papers consisted of more than conclusory allegations of ineffective assistance.