People v. Matay

Appeal by defendant (by permission) from an order of the County Court, Orange County (Ingrassia, J.), dated August 29, 1980, which denied, without a hearing, his motion to vacate the judgment of conviction *868rendered against him on July 17,1979. Case remitted to the County Court to hear and report on whether the defendant’s attorney received notice of the scheduled Grand Jury presentment and/or informed the defendant of his rights to testify before the Grand Jury (see People v Lincoln, 80 AD2d 877), and appeal held in abeyance in the interim. The County Court is to file its report with all convenient speed. The defendant’s pro se application to vacate the judgment of conviction was based on a denial of the assistance of counsel for a period beginning after his initial arraignment and preliminary hearing, and lasting until his arraignment on the indictment. He argued that the lack of counsel precluded him from exercising his right to testify before the Grand Jury. Appended to the defendant’s application was a letter from his former attorney which seemed to support his allegations. The County Court disposed of the application without a hearing and thus failed to resolve the substantial and material questions of fact generated by the motion. Thus, remittitur is necessary. Hopkins, J.P., Titone, Gibbons and Cohalan, JJ., concur.