SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

355 

KA 12-02153 

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN AND SCUDDER, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ANTHONY T. HENDERSON, JR., ALSO KNOWN AS BUTTER, 

DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Frank P.

Geraci, Jr., J.), rendered September 26, 2012. The appeal was held by

this Court by order entered March 25, 2016, decision was reserved and

the matter was remitted to Monroe County Court for further proceedings

(137 AD3d 1670). The proceedings were held and completed (Douglas A.

Randall, J.). 

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Monroe County Court for further

proceedings in accordance with the following memorandum: We

previously held this case, reserved decision, and remitted the matter

for a hearing upon determining that County Court (Geraci, J.) had

erred in summarily denying defendant’s motion to withdraw his guilty

plea (People v Henderson, 137 AD3d 1670, 1670-1671). In support of

the motion, defendant had alleged that his attorney erroneously

advised him before he pleaded guilty that his plea could be withdrawn

at any time prior to sentencing (id. at 1670). Upon remittal,

defendant was represented by new counsel, and County Court (Randall,

J.) heard the testimony of defendant’s former attorney. Defense

counsel then sought to call defendant as a witness, and the court

precluded defendant’s testimony and closed the hearing without

rendering a decision on defendant’s motion to withdraw his plea. 

The court erred in failing to rule on defendant’s motion. The

intent of our prior decision was for the court to conduct a hearing

and decide the motion by resolving any issues of credibility that

arose at the hearing (see id. at 1671; see generally People v

Stephens, 6 AD3d 1123, 1124, lv denied 3 NY3d 663, reconsideration

denied 3 NY3d 682). The court further erred in precluding defendant

from testifying at the hearing, inasmuch as “defendant’s testimony

must be considered important proof bearing directly on” whether his
-2- 355 

KA 12-02153 

guilty plea was voluntarily and intelligently entered (People v Plevy,

52 NY2d 58, 65). The testimony of defendant’s former attorney

contradicted some of the assertions made by defendant in support of

the motion, and thus defendant’s testimony was necessary for the

court’s resolution of the resulting credibility issue (see generally

People v Prochilo, 41 NY2d 759, 761; People v Fitzgerald, 56 AD3d 811,

813). Under the circumstances of this case, the preclusion of

defendant’s testimony deprived him of “ ‘a reasonable opportunity to

advance his claims [such that] an informed and prudent determination

[could] be rendered’ ” on his motion (People v Days, 125 AD3d 1508,

1509, quoting People v Frederick, 45 NY2d 520, 525). We therefore

hold the case, reserve decision, and remit the matter to County Court

to reopen the hearing and rule on defendant’s motion after affording

him an opportunity to testify (see generally id.; People v Mack, 122

AD3d 1444, 1445).

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court