People v. Waymon

65 A.D.3d 708, 883 N.Y.S.2d 911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 2009
• Status: Published

Opinion

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Feldman, J.), entered January 25, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered June 27, 2001, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

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 (see People v Session, 34 NY2d 254, 255-256 [1974]; People v Bacchi, 186 AD2d 663, 664-665 [1992]). Mere conclusory allegations of ultimate facts are insufficient to warrant a hearing (see People v Brown, 56 NY2d 242, 246-247 [1982]; see also People v Broxton, 34 AD3d 491, 492 [2006]). Here, the defendant’s claim of ineffective assistance of trial counsel was largely based upon unsubstantiated conclusory allegations and, thus, his motion pursuant to CPL 440.10 was properly denied without a hearing (see People v Brown, 56 NY2d at 246-247; People v Session, 34 NY2d at 256; People v Coleman, 37 AD3d 491 [2007]; People v Broxton, 34 AD3d at 492; People v LaPella, 185 AD2d 861, 862 [1992]). Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.