Order, Supreme Court, New York County (Daniel P. FitzGer-ald, J.), entered on or about April 17, 2015, which summarily denied defendant’s CPL 440.10 motion to vacate the judgment of conviction, reversed, on the law, and the motion granted to the extent of remanding the matter for a hearing on defendant’s claim of ineffective assistance of counsel and a decision de novo on the motion. Appeal from judgment, same court and Justice, rendered May 18, 2012, as amended May 29, 2012, convicting defendant, after a jury trial, of burglary in the second degree and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years, held in abeyance pending the aforesaid hearing and decision.
[614] Prior to jury selection, the court began a Sandoval hearing. At the hearing, the People stated that defendant had been convicted of a number of prior crimes. The court asked the People to obtain further details about some of the convictions, and adjourned the hearing to the following week. At the resumed Sandoval hearing, the People provided additional information about defendant’s criminal history. The court, however, again adjourned the. hearing because a panel of prospective jurors was about to be brought into the courtroom. The court stated that it would resume the hearing at a later point, but never did. The court did not thereafter make a Sandoval ruling, and defendant did not testify at trial.
After sentencing, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction based on ineffective assistance of counsel.* Defendant argued, among other things, that his trial counsel provided inadequate representation by failing to ask the court to resume the Sandoval hearing and render a Sandoval decision. In support of the motion, defendant submitted an affidavit stating that he wanted to testify at trial, but did not have the opportunity to decide whether it was wise to do so because of trial counsel’s failure to obtain a Sandoval ruling. Defendant further stated that when he told trial counsel that he wanted to testify, counsel threatened to “leave the case.” Trial counsel also allegedly told defendant that he should not testify because “everything about [his] past would come up.” Joseph C. Heinzmann, Jr., defendant’s 440.10 counsel, submitted an affirmation stating that trial counsel rebuffed his attempts to obtain information about the case, and made clear that he would not “cooperate with [the 440.10] motion.” Trial counsel did not submit an affirmation in support of defendant’s motion.
In denying defendant’s motion, the motion court in its written decision noted that at some unspecified time after the Sandoval hearing was postponed the second time, “[d]efense counsel . . . informed the court that the defendant was not going to testify, but in the event that changed, that the Sandoval hearing could be continued beforehand.” The court concluded that, under the circumstances, trial counsel could not be deemed ineffective for agreeing to delay a ruling on the Sandoval motion. A Justice of this Court granted defendant leave to appeal, and we now reverse.
Defendant’s moving papers were sufficient to warrant a hear[615] ing on the motion. Factual issues exist as to whether defendant was deprived of effective assistance of counsel due to trial counsel’s failure to ask the court to render a Sandoval ruling. Although the court’s written decision indicates that trial counsel told the court that defendant would not be testifying, the record does not reflect that colloquy. The court’s decision does not shed any light on whether trial counsel’s representation was made in writing, by telephone or in person. More importantly, it is unknown whether defendant was present when trial counsel’s statement was made, whether defendant had consented to counsel’s making such a representation, or whether defendant had any knowledge of counsel’s statement to the court. Notably, the People’s response to the 440.10 motion is silent as to whether trial counsel made any such representation to the court.
It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf (see Rock v Arkansas, 483 US 44, 53 n 10 [1987]; People v Hogan, 26 NY3d 779, 786 [2016]). The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone (see People v Robles, 115 AD3d 30, 34 [3d Dept 2014], lv denied 22 NY3d 1202 [2014]). Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision.
The hearing on remand should also address defendant’s claim that trial counsel was ineffective for failing to retain and consult with an expert about the DNA evidence in the case, which was the critical evidence linking defendant to the crime. Defendant maintains that trial counsel’s failure to consult a DNA expert limited his ability to effectively cross-examine the People’s DNA expert (see People v Oliveras, 21 NY3d 339, 346 [2013] [“[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client, is the attorney’s investigation of the law, the facts, and the issues that are relevant to the case”]).
In his affidavit, defendant stated that his family had given trial counsel $1,500 to hire a DNA expert to better understand the DNA evidence, but that counsel did not hire any such [616] expert. Defendant’s brother submitted an affidavit stating that he personally gave trial counsel the $1,500 for the expert. The affirmation of 440.10 counsel Heinzmann stated that trial counsel claimed to have consulted with “someone in Ohio” about the DNA evidence, but never provided that person’s name. Heinzmann also stated that trial counsel’s file contained nothing to suggest a review of the DNA evidence in the case. Further, the file had no names or contact information for any DNA consultant, and contained no telephone numbers correlating to Ohio area codes.
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Order, Supreme Court, New York County (Daniel P. FitzGer-ald, J.), entered on or about April 17, 2015, which summarily denied defendant’s CPL 440.10 motion to vacate the judgment of conviction, reversed, on the law, and the motion granted to the extent of remanding the matter for a hearing on defendant’s claim of ineffective assistance of counsel and a decision de novo on the motion. Appeal from judgment, same court and Justice, rendered May 18, 2012, as amended May 29, 2012, convicting defendant, after a jury trial, of burglary in the second degree and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years, held in abeyance pending the aforesaid hearing and decision.
[614] Prior to jury selection, the court began a Sandoval hearing. At the hearing, the People stated that defendant had been convicted of a number of prior crimes. The court asked the People to obtain further details about some of the convictions, and adjourned the hearing to the following week. At the resumed Sandoval hearing, the People provided additional information about defendant’s criminal history. The court, however, again adjourned the. hearing because a panel of prospective jurors was about to be brought into the courtroom. The court stated that it would resume the hearing at a later point, but never did. The court did not thereafter make a Sandoval ruling, and defendant did not testify at trial.
After sentencing, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction based on ineffective assistance of counsel.* Defendant argued, among other things, that his trial counsel provided inadequate representation by failing to ask the court to resume the Sandoval hearing and render a Sandoval decision. In support of the motion, defendant submitted an affidavit stating that he wanted to testify at trial, but did not have the opportunity to decide whether it was wise to do so because of trial counsel’s failure to obtain a Sandoval ruling. Defendant further stated that when he told trial counsel that he wanted to testify, counsel threatened to “leave the case.” Trial counsel also allegedly told defendant that he should not testify because “everything about [his] past would come up.” Joseph C. Heinzmann, Jr., defendant’s 440.10 counsel, submitted an affirmation stating that trial counsel rebuffed his attempts to obtain information about the case, and made clear that he would not “cooperate with [the 440.10] motion.” Trial counsel did not submit an affirmation in support of defendant’s motion.
In denying defendant’s motion, the motion court in its written decision noted that at some unspecified time after the Sandoval hearing was postponed the second time, “[d]efense counsel . . . informed the court that the defendant was not going to testify, but in the event that changed, that the Sandoval hearing could be continued beforehand.” The court concluded that, under the circumstances, trial counsel could not be deemed ineffective for agreeing to delay a ruling on the Sandoval motion. A Justice of this Court granted defendant leave to appeal, and we now reverse.
Defendant’s moving papers were sufficient to warrant a hear[615] ing on the motion. Factual issues exist as to whether defendant was deprived of effective assistance of counsel due to trial counsel’s failure to ask the court to render a Sandoval ruling. Although the court’s written decision indicates that trial counsel told the court that defendant would not be testifying, the record does not reflect that colloquy. The court’s decision does not shed any light on whether trial counsel’s representation was made in writing, by telephone or in person. More importantly, it is unknown whether defendant was present when trial counsel’s statement was made, whether defendant had consented to counsel’s making such a representation, or whether defendant had any knowledge of counsel’s statement to the court. Notably, the People’s response to the 440.10 motion is silent as to whether trial counsel made any such representation to the court.
It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf (see Rock v Arkansas, 483 US 44, 53 n 10 [1987]; People v Hogan, 26 NY3d 779, 786 [2016]). The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone (see People v Robles, 115 AD3d 30, 34 [3d Dept 2014], lv denied 22 NY3d 1202 [2014]). Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision.
The hearing on remand should also address defendant’s claim that trial counsel was ineffective for failing to retain and consult with an expert about the DNA evidence in the case, which was the critical evidence linking defendant to the crime. Defendant maintains that trial counsel’s failure to consult a DNA expert limited his ability to effectively cross-examine the People’s DNA expert (see People v Oliveras, 21 NY3d 339, 346 [2013] [“[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client, is the attorney’s investigation of the law, the facts, and the issues that are relevant to the case”]).
In his affidavit, defendant stated that his family had given trial counsel $1,500 to hire a DNA expert to better understand the DNA evidence, but that counsel did not hire any such [616] expert. Defendant’s brother submitted an affidavit stating that he personally gave trial counsel the $1,500 for the expert. The affirmation of 440.10 counsel Heinzmann stated that trial counsel claimed to have consulted with “someone in Ohio” about the DNA evidence, but never provided that person’s name. Heinzmann also stated that trial counsel’s file contained nothing to suggest a review of the DNA evidence in the case. Further, the file had no names or contact information for any DNA consultant, and contained no telephone numbers correlating to Ohio area codes.
Defendant also submitted the affidavit of File J. Carita, a forensic DNA consultant, who reviewed the DNA evidence and the trial testimony, and opined that, had defendant hired a forensic DNA expert, trial counsel could have mounted a more effective defense. For example, Carita stated that the report and testimony of the People’s DNA expert failed to provide a match rarity statistic for some of her DNA comparisons. Carita also stated that the People’s expert erroneously testified that there were no alleles, on a certain item of evidence, that were foreign to either defendant or the victim. According to Carita, if trial counsel had retained a DNA expert, he could have more effectively cross-examined the People’s DNA expert on these matters. In light of the affidavits submitted on the 440.10 motion, factual issues exist as to whether trial counsel retained a DNA expert, and if not, whether there existed strategic or other reasons for how trial counsel approached the DNA evidence (see People v Garcia, 137 AD2d 402, 406 [1st Dept 1988] [remanding for 440.10 hearing where it was not clear from the record whether defense counsel’s failure to raise an issue was due to ineffectiveness of counsel or trial strategy]).
The dissent argues that no hearing is necessary because “the alleged deficiencies in trial counsel’s performance . . . could not have affected the result of the trial.” That, however, is not the standard for reviewing claims of ineffective assistance of counsel under the State Constitution. New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” (People v Benevento, 91 NY2d 708, 714 [1998]). Although whether a defendant would have been acquitted but for counsel’s errors is relevant, a state claim of ineffective assistance “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” (id.). “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” (People v Caban, 5 NY3d 143, 156 [2005]).
[617] In focusing on the fundamental fairness of the process, the Court in Benevento emphasized that “our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence” (91 NY2d at 714, quoting People v Donovan, 13 NY2d 148, 154 [1963]). In order to properly assess whether defendant here was deprived of a fair trial, a hearing is necessary to further explore the purported errors committed by trial counsel. As noted, defendant makes a number of serious allegations, including that trial counsel threatened to “leave the case” if defendant were to testify, and told defendant that his entire criminal history would come up if he testified, even though no Sandoval ruling had been rendered. We also note that in his direct appeal, which we are holding in abeyance pending the hearing, defendant raises a number of other ineffectiveness claims based on alleged errors and omissions during the course of the trial. We believe the more prudent course of action here is to examine defendant’s ineffectiveness claim in toto, upon a full record, after a hearing.
Contrary to the dissent’s view, we are not ordering a hearing based on “an exceedingly generous reading” of defendant’s affidavit. In fact, defendant explicitly stated he “told [trial] counsel that [he] wanted to testify” but “never had the opportunity to decide whether it would be a good idea ... to testify based on how much of [his] criminal record the jury would hear because [he] never got a court decision on [his] motion.” Defendant also stated that trial counsel “kept [him] off the witness stand by threatening to leave the case and using [his] record against [him], even though the court never made that ruling.” These statements cannot be reconciled with the dissent’s conclusion that “trial counsel prevailed upon [defendant] to drop the idea of taking the stand in his own defense.” In urging that no hearing is necessary, the dissent gives short shrift to defendant’s serious allegations against trial counsel.
As noted, the record here is unclear as to whether defendant himself made the decision not to testify in his own behalf, or whether counsel made that decision without defendant’s input. The dissent recognizes that trial counsel was required to have consulted with defendant about whether defendant wished to exercise his right to testify. However, by concluding that no hearing is required, the dissent effectively ignores the questions as to how and when the trial court was purportedly informed that defendant would not testify, whether defendant was aware of this communication, and whether defendant agreed with that decision. The dissent also mistakenly sug[618] gests that we are concluding that a defense lawyer who advises a defendant not to testify, despite defendant’s wish to do so, is ineffective. We come to no such conclusion, but simply remand for an evidentiary hearing on the ineffectiveness claim.
The dissent faults defendant for not having asked trial counsel to request that the court render a Sandoval decision. It was not defendant’s responsibility, however, to remind trial counsel to do his job. Requiring a criminal defendant to bring legal issues to counsel’s attention would turn an ineffective assistance claim on its head. Contrary to the dissent’s position, the fact that defendant had a criminal record has nothing to do with whether trial counsel was ineffective in not obtaining a Sandoval ruling. A defendant with a criminal past has no less of a right to the effective assistance of counsel than a first-time offender. Moreover, the very purpose of a Sandoval ruling is to ensure that a defendant who does have a criminal record knows what the consequences of his testifying will be.
The dissent makes reference to whether the trial court committed error by failing to make a Sandoval determination and whether any such error would be harmless. Because we are holding defendant’s direct appeal in abeyance, we do not address the merits of defendant’s claims in this regard. We do believe, however, that the questions of whether the trial court erred in not ruling on defendant’s Sandoval request, and whether trial counsel was ineffective by not asking the court to make a ruling, are intertwined and are best resolved together, after the hearing we are ordering.
Concur — Richter, Moskowitz and Kapnick, JJ.