| People v Santana |
| 2012 NY Slip Op 08938 [101 AD3d 1664] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Albert Santana,Appellant. |
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Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the FourthJudicial Department, from an order of the Onondaga County Court (Joseph E. Fahey, J.), enteredSeptember 16, 2010. The order denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting defendant of murder in the second degree, attempted robbery in the first degree(two counts), criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his CPL 440.10 motion to vacate thejudgment of conviction after trial. Defendant moved to vacate the judgment on the ground that he wasdenied effective assistance of counsel because, inter alia, defense counsel did not properly advisedefendant with respect to a plea offer. Although we agree with the People that "the motion papers 'donot contain sworn allegations substantiating or tending to substantiate' defendant's claims of ineffectiveassistance of counsel" (People v Vigliotti,24 AD3d 1216, 1216 [2005]; cf.People v Frazier, 87 AD3d 1350, 1351 [2011]; People v Howard, 12 AD3d 1127, 1128 [2004]; see generally People v Vaughan, 20 AD3d940, 942 [2005], lv denied 5 NY3d 857 [2005]), County Court did not decide that issueadversely to defendant, and thus we decline to affirm the order on that ground (see generally People v Concepcion, 17NY3d 192, 197-198 [2011]).
We conclude, however, that the court properly denied the motion without a hearing on the groundthat the allegations in support of the motion are made solely by defendant, that those allegations areunsupported by other evidence and that, under all the circumstances, there is no reasonable possibilitythat such allegations are true (see CPL 440.30 [4] [d]). "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 discretionin denying the motion without a hearing" (People v Hoffler, 74 AD3d 1632, 1635 [2010], lv denied 17NY3d 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]). Present—Smith, J.P., Peradotto, Carni,Sconiers and Whalen, JJ.