People v. Dupree

Feb 6, 2007
Versions:37 A.D.3d 491
829 N.Y.S.2d 199

Appeal by the defendant, by permission, from an order of the County Court, Nassau County (Peck, J.), entered April 5, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (DeRiggi, J.), rendered May 5, 2003, convicting him of robbery in the second degree, robbery in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

In deciding a motion pursuant to CPL 440.10, the trial court need not hold a hearing if the parties’ submissions are sufficient to render a determination (see CPL 440.30 [1], [4]; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Demetsenare, 14 AD3d 792, 793 [2005]). The defendant must show that the nonrecord facts sought to be established are material and would entitle him or her to relief (see People v Satterfield, supra; People v Demetsenare, supra). Here, the defendant‘s claims of ineffective assistance of trial counsel were largely based upon unsubstantiated, conclusory allegations, and thus, the defendant‘s motion pursuant to CPL 440.10 was properly denied without a hearing (see People v Hall, 28 AD3d 678 [2006], lv denied 7 NY3d 867 [2006]; People v Bacchi, 186 AD2d 663 [1992]).

The defendant‘s remaining contention was not raised in the underlying motion papers and therefore is not properly before us on appeal.

Miller, J.P., Spolzino, Ritter and Dillon, JJ., concur.