motion without hearing in New York

2018Accordingly, as defendant did not support his claim of ineffective assistance of counsel with factual allegations that, if established, would entitle him to relief, County Court properly denied the motion without a hearing ( see People v Satterfield , 66 NY2d 796, 799 [1985]; People v Griffin , 89 AD3d 1235, 1237-1238 [2011]).

2018Further, given that defendant's submissions do not demonstrate that "the nonrecord facts sought to be established are material and would entitle him to relief," we find that County Court properly denied the motion without a hearing ( People v Satterfield , 66 NY2d 796, 799 [1985]; see People v Jones , 161 AD3d 1311 , 1313 [2018], lv denied 31 NY3d 1118 [2018]; People v Kot , 126 AD3d 1022, 1025 [2015], lv denied 25 NY3d 1203 [2015]).

2015Since, under all the circumstances attending the case, there is no reasonable possibility that such allegations are true, the Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion without a hearing (see CPL 440.30 [4] [d]; People v Soodoo, 109 AD3d 1014, 1016 [2013]; People v Smiley, 67 AD3d 713, 714 [2009]).

2014Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion without a hearing (see CPL 440.30 [4] [d]; People v Smiley, 67 AD3d 713, 714 [2009]; People v Green, 200 AD2d 687, 687 [1994]; People v Pachay, 185 AD2d 287, 287 [1992]; cf. People v Mobley, 59 AD3d 741, 742 [2009]).

2023As the motion papers were insufficient given that they did not comply with the statutory requirement of CPL 710.60 (1) and raised no issue of fact, we are unpersuaded that the court's ultimate decision to summarily deny the motion without a hearing was an abuse of discretion ( see CPL 710.60 [3]; People v Ibarguen , 37 NY3d at 1108, People v Mendoza , 82 NY2d at 426-427 ).

2016Under CPL 440.30 (4) (b), based on this failure to provide sworn allegations substantiating or tending to substantiate the essential facts, County Court was within its province to deny the motion without a hearing (compare CPL 710.60 [3] [b]; People v Mendoza, 82 NY2d 415 [1993]).

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2016We therefore conclude that defendant was “afforded a reasonable opportunity to advance his claims” and that the court did not abuse its discretion in denying the motion without a hearing (People v Witcher, 222 AD2d 1016, 1016 [1995], lv denied 87 NY2d 1027 [1996]; see Manor, 27 NY3d at 1013 ; People v Zimmerman, 100 AD3d 1360 , 1362 [2012], lv denied 20 NY3d 1015 [2013]).

2016We therefore conclude that defendant was “afforded a reasonable opportunity to advance his claims” and that the court did not abuse its discretion in denying the motion without a hearing (People v Witcher, 222 AD2d 1016, 1016 [1995], lv denied 87 NY2d 1027 [1996]; see Manor, 27 NY3d at 1013 ; People v Zimmerman, 100 AD3d 1360 , 1362 [2012], lv denied 20 NY3d 1015 [2013]).

2016The knowledge of the underlying proceedings, together with the written submissions received in connection with the motion, provided the court with a sufficient basis to decide the motion without a hearing (see People v Robetoy, 48 AD3d 881, 883 [2008]; People v Demetsenare, 14 AD3d 792, 793 [2005]).

2013Given the court’s familiarity with the matter and the inadequacy of defendant’s submissions, we find no error in the denial of the motion without a hearing (see People v Ellis, 53 AD3d 776, 777 [2008]; People v Robetoy, 48 AD3d 881, 883 [2008]).

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2021We thus conclude that defendant's submissions "support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing" ( People v Scott , 181 AD3d 1220, 1222 [4th Dept 2020] [internal quotation marks omitted]) and that "[t]he People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing" ( People v Parsons , 114 AD3d 1154, 1154 [4th Dept 2014]; see CPL 440.30 [2], [4], [5]; see generally People v Jones , 24 NY3d 623, 636 [2014]).

2021Thus, assessed in totality, defendant's claim of ineffective assistance of counsel "is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts" (CPL 440.30 [4] [b]), and denial of the motion without a hearing on that issue was not an abuse of discretion ( see People v Jones , 24 NY3d 623, 630 [2014]; People v Lostumbo , 175 AD3d 844 , 846 [4th Dept 2019], lv denied 34 NY3d 1017 [2019]).

2019As defendant did not show the existence of nonrecord facts that were material and would entitle him to relief, County Court did not err in denying the motion without a hearing ( see People v LaPierre , 108 AD3d 945, 946 [2013]).

2017Given that defendant’s allegations on the motion are contradicted by his sworn account and “unsupported by any other affidavit or evidence” and “there is no reasonable possibility that such allegation[s] [are] true,” the court properly denied the motion without a hearing (CPL 440.30 [4] [d]; see People v Ryder, 136 AD3d 1109, 1109-1110 [2016], lv denied 27 NY3d 1005 [2016]; People v LaPierre, 108 AD3d 945, 946 [2013]; People v Vallee, 97 AD3d 972 , 974 [2012], lv denied 20 NY3d 1104 [2013]).

2010(CPL 440.30 [3] [c].) The court may, nonetheless, upon reaching the merits still deny the motion without a hearing if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL 440.30 [4] [a]) or fail to allege sufficient facts to support the legal ground asserted (CPL 440.30 [4] [b]; People v Session, 34 NY2d 254, 255-256 [1974]).

2005The summary denial of the defendant’s motion without a hearing was a provident exercise of discretion (see CPL 440.30 [4] [b]; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Session, 34 NY2d 254, 256 [1974]; People v Wells, 265 AD2d 589 [1999]; People v Lake, 213 AD2d 494 [1995]; People v Lawson, 191 AD2d 514 [1993]; People v LaPella, 185 AD2d 861 [1992]).

2021Where a "careful scrutiny" ( People v Brown , 14 NY3d at 118 ) of a motion to withdraw the plea "reveals that defendant's allegations fail to raise a legitimate question as to the voluntariness of the plea, the court may deny the motion without a hearing" ( id. ).

2021Where a "careful scrutiny" ( People v Brown , 14 NY3d at 118 ) of a motion to withdraw the plea "reveals that defendant's allegations fail to raise a legitimate question as to the voluntariness of the plea, the court may deny the motion without a hearing" ( id. ).

2016We therefore conclude that defendant was “afforded a reasonable opportunity to advance his claims” and that the court did not abuse its discretion in denying the motion without a hearing (People v Witcher, 222 AD2d 1016, 1016 [1995], lv denied 87 NY2d 1027 [1996]; see Manor, 27 NY3d at 1013 ; People v Zimmerman, 100 AD3d 1360 , 1362 [2012], lv denied 20 NY3d 1015 [2013]).

2016We therefore conclude that defendant was “afforded a reasonable opportunity to advance his claims” and that the court did not abuse its discretion in denying the motion without a hearing (People v Witcher, 222 AD2d 1016, 1016 [1995], lv denied 87 NY2d 1027 [1996]; see Manor, 27 NY3d at 1013 ; People v Zimmerman, 100 AD3d 1360 , 1362 [2012], lv denied 20 NY3d 1015 [2013]).

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2024People v. Taylor , 211 AD2d 603, 603 , 621 N.Y.S.2d 877 (1st Dept. 1995), lv. den ., 85 NY2d 981 , 629 N.Y.S.2d 741 , 653 N.E.2d 637 [1995]; see also, People v. Woodard , 23 AD3d 771, 772 , 803 N.Y.S.2d 776 (3d Dept.2005) (where the defendant's affidavit, "the sole proof submitted in support of his motion, contained only conclusory generic allegations," the trial court properly denied the motion without a hearing), lv. den., 6 NY3d 782 , 811 N.Y.S.2d 349 , 844 N.E.2d 804 (2006); People v. Sayles, 17 AD3d 924 , 794 N.Y.S.2d 160 (3d Dept.2005) (trial court properly denied motion without a hearin

2014With respect to the contention raised in defendant’s pro se supplemental brief that his right to counsel was violated, we conclude that the court properly denied the motion without a hearing inasmuch as defendant’s appeal was pending and “sufficient facts appear[ed] on the record with respect to [that] [contention] to permit adequate review thereof upon such . . . appeal” (CPL 440.10 [2] [b]; see People v Cooks, 67 NY2d 100, 104 [1986]).

2014With respect to the contention raised in defendant’s pro se supplemental brief that his right to counsel was violated, we conclude that the court properly denied the motion without a hearing inasmuch as defendant’s appeal was pending and “sufficient facts appear[ed] on the record with respect to [that] [contention] to permit adequate review thereof upon such . . . appeal” (CPL 440.10 [2] [b]; see People v Cooks, 67 NY2d 100, 104 [1986]).

2024Defendant contends that counsel's failure to apprise him, prior to his plea, that his guilty plea could result in deportation constituted the ineffective assistance of counsel, thereby warranting vacatur of his plea or, at a minimum, a hearing on his motion. [FN1] "To prevail on a claim of ineffective assistance under the Federal Constitution, a defendant 'must show that counsel's representation fell below an objective standard of reasonableness' and 'that the deficient performance prejudiced the defense' " ( People v Abdallah , 153 AD3d 1424, 1425 [2d Dept 2017], quoting Strickland v Washingt

2012In order to successfully assert an ineffective assistance of counsel claim under the US Constitution, defendant must demonstrate that counsel’s performance was deficient and that such performance prejudiced defendant (see Strickland v Washington, 466 US 668, 687 [1984]).

2024See, CPL 440.30 [4][b]; People v. Session , 34 NY2d 254 , 357 N.Y.S.2d 409 , 313 N.E.2d 728 ; People v. Britt , 148 AD2d 911 , 539 N.Y.S.2d 540 ); People v LaPella , 185 AD2d 861, 862 [2d Dept. 1992] (To obtain a hearing on a motion to vacate a judgment of conviction, it is the defendant's burden as movant to come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction).

2005The summary denial of the defendant’s motion without a hearing was a provident exercise of discretion (see CPL 440.30 [4] [b]; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Session, 34 NY2d 254, 256 [1974]; People v Wells, 265 AD2d 589 [1999]; People v Lake, 213 AD2d 494 [1995]; People v Lawson, 191 AD2d 514 [1993]; People v LaPella, 185 AD2d 861 [1992]).

2016Under these circumstances, [the court] erred in denying the motion without a hearing” (P eople v Ferreras, 70 NY2d 630, 631 [1987]).

2016Under these circumstances, [the court] erred in denying the motion without a hearing” (P eople v Ferreras, 70 NY2d 630, 631 [1987]).

2012“Considering all of the circumstances, including that defendant’s motion was decided by a judge who, having presided over defendant’s trial, was familiar with the facts . . . , we cannot conclude that [the] [c]ourt abused its discretion in denying the motion without a hearing” (People v Hoffler, 74 AD3d 1632 , 1635 [2010], lv denied 17 NY3d 859 [2011]; see People v Smiley, 67 AD3d 713, 714 [2009], lv denied 13 NY3d 942 [2010]; People v DeJesus, 39 AD3d 1196, 1197 [2007], lv denied 9 NY3d 874 [2007]).

2012“Considering all of the circumstances, including that defendant’s motion was decided by a judge who, having presided over defendant’s trial, was familiar with the facts . . . , we cannot conclude that [the] [c]ourt abused its discretion in denying the motion without a hearing” (People v Hoffler, 74 AD3d 1632 , 1635 [2010], lv denied 17 NY3d 859 [2011]; see People v Smiley, 67 AD3d 713, 714 [2009], lv denied 13 NY3d 942 [2010]; People v DeJesus, 39 AD3d 1196, 1197 [2007], lv denied 9 NY3d 874 [2007]).

2021By order dated October 28, 2014, the Supreme Court denied the motion without a hearing, holding that the defendant was not denied the effective assistance of counsel insofar as the rule set forth in Padilla v Kentucky ( 559 US 356 ) did not apply retroactively in post-conviction proceedings where the conviction had become final before March 31, 2010 ( see Chaidez v United States , 568 US 342, 358 ; People v Baret , 23 NY3d 777, 782 ), that there had been no affirmative attorney misadvice, and that the defendant could not demonstrate any prejudice.

2018A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty ( see US Const Amend VI; NY Const, art I, § 6; Padilla v Kentucky, 559 US 356, 364 ).

2016A court may deny the motion without a hearing if, among other things, “the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts” (CPL 440.30 [4] [b]). * Denial of a CPL 440.10 motion is reviewed under an abuse of discretion standard (People v Samandarov, 13 NY3d 433 [2009]).

2013In light of the lack of competent proof presented on the issue and the speculative nature of defendant’s argument, County Court acted within its discretion in denying the motion without a hearing (see People v Samandarov, 13 NY3d 433, 436 [2009]; People v Gerrara, 88 AD3d 811, 813-814 [2011], lv denied 18 NY3d 957 [2012], cert denied 568 US —, 133 S Ct 857 [2013]; People v Young, 74 AD3d 1471, 1473-1474 [2010], lv denied 15 NY3d 811 [2010]).