hearing challenge in New York

2021"While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing" ( Matter of Twiss v Brennan , 82 AD3d 1533, 1534 [2011]), an evidentiary hearing is generally "necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]'s best interests" ( Matter of Chittick v Farver , 279 AD2d 673, 675 [2001] [internal citation omitted]; see Matter of Polloc

2016“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary *1275 showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests” (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks, brackets and citations omitted]; accord Matter of Giovanni v Hall, 86 AD3d 676,

2021"While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing" ( Matter of Twiss v Brennan , 82 AD3d 1533, 1534 [2011]), an evidentiary hearing is generally "necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]'s best interests" ( Matter of Chittick v Farver , 279 AD2d 673, 675 [2001] [internal citation omitted]; see Matter of Polloc

2020An evidentiary hearing is generally "necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and [Family C]ourt has sufficient information to undertake a comprehensive independent review of the children's best interests" ( Matter of Chittick v Farver , 279 AD2d 673, 675 [2001] [internal citation omitted]; accord Matter of Christopher B. v Patricia B. , 75 AD3d 871, 872 [2010]).

2020An evidentiary hearing is generally "necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and [Family C]ourt has sufficient information to undertake a comprehensive independent review of the children's best interests" ( Matter of Chittick v Farver , 279 AD2d 673, 675 [2001] [internal citation omitted]; accord Matter of Christopher B. v Patricia B. , 75 AD3d 871, 872 [2010]).

2012“While not eveiy petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, [generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [child’s] best interests” (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks and citations omitted]; accord Matter of Giovanni v Hall, 86 AD3d 676, 677 [2011]; s

2021If the defendant meets this prima facie burden, a hearing on the claim is conducted ( see People v Hamilton , 115 AD3d at 27).

2014If the defendant meets this prima facie burden, a hearing on the claim is conducted (see People v Hamilton, 115 AD3d at 27).

2018We note that "a hearing on a CPL 440.10 motion is not always necessary, [but] a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief" ( People v Monteiro , 149 AD3d 1155 , 1156 [2017]; see People v Satterfield , 66 NY2d 796, 799 [1985]; People v Stahl, 141 AD3d 962, 966 [2016], lv denied 28 NY3d 1127 [2016], cert denied ___ US ___, 138 S Ct 222 [2017].

2014Had the motion papers merely consisted of conclusory allegations of ineffective legal assistance combined with a summary of the existing record and the Appellate Division’s original decision, defendant would not be entitled to a hearing because his claim would be premised entirely on the record on direct appeal, which the Appellate Division fully considered and found inadequate to grant relief (see CPL 440.10 [2] [a], [b]; see also CPL 440.30 [4] [d]; People v Satterfield, 66 NY2d 796, 799 [1985]).

2016While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant‘a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[ ]’s best interests” (Matter of Chittick v Farver, 279 AD2d 673, 675 [2001] [internal citation omitted]; see Matter of Harrell v Fox, 137 AD3d 1352, 1354 [2016]; Matter of Freedman v Horike, 107 AD3d 1332, 1333 [2013]).

2016“Generally^] an eviden-tiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the children’s best interests” (Matter of Chittick v Farver, 279 AD2d 673, 675 [2001] [citations omitted]; see Matter of Freedman v Horike, 107 AD3d 1332, 1333 [2013]).

2016“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary *1275 showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests” (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks, brackets and citations omitted]; accord Matter of Giovanni v Hall, 86 AD3d 676,

2012“While not eveiy petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, [generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [child’s] best interests” (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks and citations omitted]; accord Matter of Giovanni v Hall, 86 AD3d 676, 677 [2011]; s

2016“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children’s] best interests” (Matter of Schnock v Sexton, 101 AD3d 1437, 1437 [2012] [internal quotation marks, brackets and citations omitted]).

2013An evidentiary hearing is thus necessary “unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [child’s] best interests” (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks and citations omitted]; see Matter of Schnock v Sexton, 101 AD3d 1437, 1437 [2012]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2013Finally, defendant’s claim that there is a lack of support in the record for the amount of restitution ordered is also unpreserved for our review in light of his failure to request a hearing or challenge the amount during sentencing (see People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]; People v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).

2013Finally, defendant’s claim that there is a lack of support in the record for the amount of restitution ordered is also unpreserved for our review in light of his failure to request a hearing or challenge the amount during sentencing (see People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]; People v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).

2017We 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 [2014]).

2017We 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 [2014]).

2017While defendant repeatedly questioned why the money was not being returned to him, he never made the specific argument that County Court should order it returned to protect his right to counsel of his choice (see CPL 470.05 [2]), nor did he request a hearing to test the People’s assertion that the money was related to the charged crimes (cf. Kaley v United States, 571 US —, —, 134 S Ct 1090, 1095 [2014]).

2017While defendant repeatedly questioned why the money was not being returned to him, he never made the specific argument that County Court should order it returned to protect his right to counsel of his choice (see CPL 470.05 [2]), nor did he request a hearing to test the People’s assertion that the money was related to the charged crimes (cf. Kaley v United States, 571 US —, —, 134 S Ct 1090, 1095 [2014]).

2016We reject that contention inasmuch as defendant’s challenges to his attorney’s performance were already raised on direct appeal and rejected by this Court (.People v Barksdale, 129 AD3d 1497, 1498 [2015], lv denied 26 NY3d 926 [2015], reconsideration denied 26 NY3d 1007 [2015]).

2016We reject that contention inasmuch as defendant’s challenges to his attorney’s performance were already raised on direct appeal and rejected by this Court (.People v Barksdale, 129 AD3d 1497, 1498 [2015], lv denied 26 NY3d 926 [2015], reconsideration denied 26 NY3d 1007 [2015]).

2015Although defendant correctly contends that erroneous information in a preplea report “create[s] an unjustifiable risk of future adverse effects to [him] in other contexts” (People v Freeman, 67 AD3d 1202, 1203 [2009]), we conclude that defendant has made no showing that the information in the preplea report was inaccurate (see People v Rudduck, 85 AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]).

2015Although defendant correctly contends that erroneous information in a preplea report “create[s] an unjustifiable risk of future adverse effects to [him] in other contexts” (People v Freeman, 67 AD3d 1202, 1203 [2009]), we conclude that defendant has made no showing that the information in the preplea report was inaccurate (see People v Rudduck, 85 AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]).

2015Although defendant correctly contends that erroneous information in a preplea report “create[s] an unjustifiable risk of future adverse effects to [him] in other contexts” (People v Freeman, 67 AD3d 1202, 1203 [2009]), we conclude that defendant has made no showing that the information in the preplea report was inaccurate (see People v Rudduck, 85 AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]).

2015Although defendant correctly contends that erroneous information in a preplea report “create[s] an unjustifiable risk of future adverse effects to [him] in other contexts” (People v Freeman, 67 AD3d 1202, 1203 [2009]), we conclude that defendant has made no showing that the information in the preplea report was inaccurate (see People v Rudduck, 85 AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]).

2015“While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” (People v Marrero, 30 AD3d 637, 638 [2006]).

2015“While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” (People v Marrero, 30 AD3d 637, 638 [2006]).

2015“Thus, we cannot find that counsel’s misconception during plea negotiations caused defendant any prejudice” (People v Thomson, 46 AD3d 939, 941 [2007], lv denied 9 NY3d 1039 [2008]).

2015“Thus, we cannot find that counsel’s misconception during plea negotiations caused defendant any prejudice” (People v Thomson, 46 AD3d 939, 941 [2007], lv denied 9 NY3d 1039 [2008]).

2015Although defendant established at the hearing that defense counsel incorrectly advised him during plea negotiations that he was facing consecutive sentences after conviction, defendant failed to establish that he was deprived of the possibility of a plea bargain acceptable to him as the result of defense counsel’s error (cf. People v Perron, 287 AD2d 808, 808-809 [2001], lv denied 97 NY2d 686 [2001]).

2015Although defendant established at the hearing that defense counsel incorrectly advised him during plea negotiations that he was facing consecutive sentences after conviction, defendant failed to establish that he was deprived of the possibility of a plea bargain acceptable to him as the result of defense counsel’s error (cf. People v Perron, 287 AD2d 808, 808-809 [2001], lv denied 97 NY2d 686 [2001]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2014Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15 [2014]), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347 [2006]; see People v Garner, 86 AD3d 955, 955 [2011]; see also People v Crawford, 106 AD3d 832, 833 [2013], lv denied 21 NY3d 1014 [2013]).

2013“A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” (People v Fernandez, 67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion (see generally People v Elmer, 19 NY3d 501, 507-508 [2012]).

2013“A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” (People v Fernandez, 67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion (see generally People v Elmer, 19 NY3d 501, 507-508 [2012]).

2013“A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” (People v Fernandez, 67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion (see generally People v Elmer, 19 NY3d 501, 507-508 [2012]).

2013“A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” (People v Fernandez, 67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion (see generally People v Elmer, 19 NY3d 501, 507-508 [2012]).

2023ORDERED that the matter is remitted to the Supreme Court, Queens County, for an in camera hearing and inquiry in accordance with the guidelines set forth in People v Darden ( 34 NY2d 177 ), and thereafter a report to this Court containing the Supreme Court's findings following the hearing and inquiry, and the appeal is held in abeyance in the interim.

2011Defendant failed to preserve for our review his further contention that the court erred in failing to conduct a Darden hearing inasmuch as he did not request such a hearing or challenge the identity of the confidential informant (see CPL 470.05 [2]; People v Darden, 34 NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2022Although an evidentiary hearing is generally necessary, "not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing" ( Matter of Sarah OO. v Charles OO. , 198 AD3d at 1152 [internal quotation marks and citation omitted]), including where "the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child['s] best interests" ( Matter of Gerard P. v Paula P. , 186 AD3d 934 , 937—938 [2020] [i

2022Although an evidentiary hearing is generally necessary, "not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing" ( Matter of Sarah OO. v Charles OO. , 198 AD3d at 1152 [internal quotation marks and citation omitted]), including where "the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child['s] best interests" ( Matter of Gerard P. v Paula P. , 186 AD3d 934 , 937—938 [2020] [i

2013Finally, defendant’s claim that there is a lack of support in the record for the amount of restitution ordered is also unpreserved for our review in light of his failure to request a hearing or challenge the amount during sentencing (see People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]; People v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).

2013Finally, defendant’s claim that there is a lack of support in the record for the amount of restitution ordered is also unpreserved for our review in light of his failure to request a hearing or challenge the amount during sentencing (see People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]; People v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).