N.Y. Crim. Proc. Law § 440.10

An application to vacate a judgment under § 440.10(1) may require a hearing when the circumstances warrant one.

People v. Simone · filed 1980-10-20(1)

Additionally, under the circumstances here presented, a hearing should be held on defendant’s application to vacate the judgment.

A CPL 440.10 motion alleging an unfulfilled plea agreement warrants an evidentiary hearing when no testimony has been taken and the prosecution offers only an insufficient hearsay affidavit.

People v. Gupta · filed 1981-02-26

No testimony was taken in connection with defendant’s motion and no affidavits of the involved representatives of the District Attorney’s office were submitted. The hearsay affidavit of an Assistant District Attorney who was not present is plainly insufficient. Accordingly, the matter is remitted for a full evidentiary hearing to be conducted forthwith and for complete findings of fact including the content of conversations or oral agreements, if any, concerning a reduced plea and sentence; the identification of the participants in any such conversations; what, if any, actions defendant took pursuant to such conversations; and ... what, if any, efforts were made thereafter on defendant’s behalf to obtain a reduced plea (see People v Argentine, 67 AD2d 180).

A motion under CPL 440.10 to vacate a conviction may be denied without a hearing.

People v. Traynham · filed 1981-12-03

Finally, the trial court properly denied, without a hearing, defendant’s GPL 440.10 motion to vacate the judgment of conviction (People v Ford, 46 NY2d 1021,1023).

Section 440.10 requires a hearing when a motion to vacate raises material facts outside the record that could not have been raised on direct appeal.

People v. Coley · filed 1981-12-23

The trial court erred in denying, without a hearing, defendant’s motion to vacate the judgment pursuant to CPL 440.10. The direct appeal from the judgment of conviction, which was affirmed concerned only matters in the record, whereas the facts underlying the motion concerned matters outside the record.

A motion to vacate for prosecutorial misconduct requires evidence that the prosecution knew testimony was false to raise an issue warranting a hearing.

People v. Brown · filed 1982-05-20(1)(c)

To raise a triable issue some actual evidence of knowledge on the part of the prosecution that McCarthy’s testimony was false must be submitted to the court.

Section 440.10 permits dismissal without a hearing when moving papers lack competent evidence supporting an allegation that counsel gave erroneous advice.

People v. Bulinski · filed 1982-11-09(1)(h)

Defendant’s allegations that his misunderstanding arose because of the erroneous private advice given by his trial attorney are not supported in his moving papers by competent evidence and County Court properly dismissed the petition without a hearing (see People v Ford, 46 NY2d 1021; People v Session, 34 NY2d 254).

A CPL 440.10 movant must set forth sufficient grounds to obtain a hearing.

People v. Batts · filed 1983-08-01

Nevertheless, defendant’s motion was properly ...denied, because he failed to set forth sufficient grounds to justify granting him a hearing.

A CPL 440.10 motion may be denied without a hearing when its supporting recantation is incredible, even if it alleges police or prosecutorial misconduct.

People v. Dukes · filed 1984-12-14(1)(f)

Accordingly it was a proper exercise of the court’s discretion to deny the motion without a hearing. That a portion of the recanted affidavit alleges misconduct by police and prosecution (see CPL 440.10, subd 1, par [f]) does not alter its nature as recanted evidence, which we reject as incredible.

A court may deny a § 440.10 motion based on a recantation affidavit without an evidentiary hearing when it finds the affidavit incredible.

People v. Donald · filed 1985-01-28(1)(c), (1)(f)

It is ancient learning that “[t]here is no form of proof so unreliable as recanting testimony” (People v Shilitano, 218 NY 161, 170) and the court properly exercised its discretion in finding that the recantation affidavit executed by the inmate was incredible without conducting an evidentiary hearing (CPL 440.10, subd 1, pars [c], [f]; People v Brown, 56 NY2d 242, 246; People v Welcome, 37 NY2d 811; People v Slaughter, 37 NY2d 596, 601; People v Balan, 107 AD2d 811).

A motion under CPL 440.10 does not invariably require a hearing to develop additional facts.

People v. Satterfield · filed 1985-11-12

but this is not to say that, where a postjudgment motion is made under CPL 440.10, a hearing to develop additional background facts is invariably necessary.

Section 440.10 does not require an evidentiary hearing when the defendant raises no factual issue casting doubt on counsel’s apparent effectiveness.

People v. Kalakowski · filed 1986-05-01

Defendant has not raised any factual issues which would cast doubt on the apparent effective assistance that he received and thus require a hearing.

A motion to vacate under CPL 440.10 requires a hearing when pertinent factual issues remain unresolved.

People v. Jenkins · filed 1986-10-21

We cannot assume, however, simply on the basis of defendant’s allegations, that no such explanation exists. Accordingly, it was error to deny defendant’s motion without a hearing and the case must be remitted to Supreme Court for the resolution of pertinent factual issues.

A court may deny a CPL 440.10 motion without a hearing when conclusory allegations of prosecutorial misconduct raise no triable issue of fact.

People v. Mazzilli · filed 1986-12-22

Additionally, the trial court did not abuse its discretion in denying the defendant’s motion to vacate his conviction without a hearing, as mere conclusory allegations of prosecutorial misconduct are not sufficient to raise a triable issue of fact (see, People v Brown, 56 NY2d 242, 247).

A CPL 440.10 motion alleging ineffective assistance of counsel does not automatically require a hearing.

People v. Kittell · filed 1987-12-30

While a hearing is often necessary to establish the factual background of an ineffective assistance claim (see, People v Love, 57 NY2d 998, 1000), a hearing is not necessitated by every CPL 440.10 motion which alleges ineffective assistance (People v Satterfield, 66 NY2d 796).

A defendant seeking relief under CPL 440.10 must raise a factual issue based on nonrecord facts; the court may deny the motion without a hearing if the defendant fails to do so.

People v. Harris · filed 1987-10-29

For failure to sustain his burden of proving that nonrecord issues of fact existed sufficient to entitle defendant to relief on his CPL 440.10 motion, County Court properly denied the motion without a hearing (see, People v Satterfield, 66 NY2d 796).

A CPL 440.10 motion alleging ineffective assistance requires an evidentiary hearing when the record does not show whether counsel’s omission resulted from trial strategy or ineffectiveness.

People v. Garcia · filed 1988-02-02

Based upon our analysis, supra, we find that Trial Term erred in denying defendant’s motion, without a hearing, since it is not clear from the record whether defense counsel’s failure to raise the issue of the legality of defendant’s arrest was due to ineffectiveness of counsel or trial strategy (People v Brown, 45 NY2d 852, 854 [1978]). Accordingly, we hold the appeal from the judgment in abeyance, and grant defendant’s CPL 440.10 motion to the extent of remanding the matter to Trial Term for an evidentiary hearing.

A hearing on a Section 440.10 motion is unnecessary when the defendant fails to show that material facts outside the record would entitle him to relief.

People v. Buckley · filed 1988-04-11

We are unpersuaded by the defendant’s contention that an evidentiary hearing was necessary to determine his claim of ineffective assistance of trial counsel. Under the circumstances the defendant has failed to show that facts dehors the record are material and would entitle him to the relief sought in his CPL 440.10 motion (see, People v Angelakos, 70 NY2d 670; People v Satterfield, 66 NY2d 796, 799; cf., People v Ferreras, 70 NY2d 630; People v Jenkins, 68 NY2d 896).

Section 440.10(3)(a) does not justify denying a motion without a hearing when the defendant was not lacking in diligence before sentencing and the submissions raise factual issues.

People v. Qualls · filed 1987-11-25(3)(a)

Thus, on these submissions it appears that defendant’s failure to bring to light the underlying facts of the alleged prosecutorial misconduct before his sentencing was not through lack of due diligence, and that issues of fact were raised as to whether there was indeed a specific promise made to Rambert to secure a further reduction of his sentence to 1 Vi to 3 years, and whether the facts in respect thereto were incompletely represented at trial (see, People v Mangi, 10 NY2d 86, supra; People v Savvides, 1 NY2d 554, supra). The trial court therefore erred in denying defendant’s motion without a hearing.

Section 440.10 requires a defendant seeking to vacate a judgment to set forth sufficient facts to warrant a hearing or postjudgment relief.

People v. Paterno · filed 1988-06-20

The defendant’s motion pursuant to CPL 440.10 was properly denied since he did not set forth sufficient facts to entitle him to a hearing or to any postjudgment relief (see, People v Satterfield, 66 NY2d 796).

Section 440.10 does not require a hearing when the defendant’s allegation is specifically rebutted by his own statement on the record.

People v. Empey · filed 1988-06-30

Defendant’s contention that County Court erred in not granting a hearing on his CPL 440.10 motion is unpersuasive since the allegation in that motion, i.e., that a promise had not been kept with respect to sentencing, is specifically rebutted by defendant’s own statement on the record that no promises had been made with respect to sentencing.

Section 440.10(2)(b) permits denial of a motion to vacate without a hearing when sufficient facts about the asserted ground appear in the record.

People v. Hill · filed 1989-01-05(2)(b)

Last, we find no error in County Court’s denial of defendant’s CPL article 440 motion without a hearing since sufficient facts appear on the record with respect to the ground raised (CPL 440.10 [2] [b]; see, People v Cooks, 67 NY2d 100, 104).

A court may deny a CPL 440.10 motion without an evidentiary hearing when the allegations do not raise a triable issue as to the validity of the judgment.

People v. Britt · filed 1989-03-30

Under these circumstances, County Court could properly deny the motion to vacate without conducting an evidentiary hearing (see, People v Brown, 56 NY2d 242, 246-247; People v Ford, 46 NY2d 1021; compare, People v Qualls, 70 NY2d 863).

A CPL 440.10 motion warrants a hearing when the defendant presents facts suggesting that prosecutors withheld a witness agreement and the prosecution offers no evidence to refute them.

People v. Gayle · filed 1989-03-07

Upon review of the record, we conclude that the court below improvidently denied defendant’s CPL 440.10 motion without affording him a hearing. Defendant’s submission on the motion showed that Elaine Franklin had been arrested and identified as a participant in a robbery. The very fact that the indictment charging Ms. Franklin with that robbery was later dismissed strongly suggests that some arrangement had been made with her. If no arrangement had been made, proof of that fact could readily have been supplied by the People on the motion.

A court has discretion to deny a hearing on a motion under section 440.10(1)(h).

People v. Boyette · filed 1989-04-24(1)(h)

With respect to the defendant’s posttrial motion pursuant to CPL 440.10 (1) (h), the record discloses no improvident exercise of discretion on the part of the Supreme Court in denying his request for a hearing (see, People v Friedgood, 58 NY2d 467, 470).

A court may deny a CPL 440.10 motion to vacate a judgment without a hearing.

People v. Jordan · filed 1993-05-13

Finally, County Court did not err in denying defendant’s CPL 440.10 motion without a hearing.

Section 440.10(2)(b) permits denial without a hearing when a motion repeats an ineffective-assistance claim without adding to the record.

People v. Mitchell · filed 1993-07-06(2)(b)

We also note that since defendant’s postjudgment CPL 440.10 motion to vacate his conviction was based on this same ineffective assistance claim with no additional submissions for the record, the trial court properly denied the motion without a hearing (CPL 440.10 [2] [b]).

A defendant seeking a hearing under CPL 440.10 must allege facts outside the conviction record sufficient to create an issue of fact.

People v. Crippen · filed 1993-08-09

In order to overcome that presumption and entitle a defendant to a hearing on a motion to vacate the judgment pursuant to CPL 440.10, the defendant has the burden of coming forward with allegations sufficient to create an issue of fact as to matters not appearing on the record of the underlying conviction.

Section 440.10 permits denial of a motion to vacate a conviction without a hearing when the alleged facts, even if true, would not warrant vacatur.

People v. Sacco · filed 1993-12-06

The County Court did not err in denying the defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10 without a hearing, since the facts set forth in the defendant’s motion papers, even if true, would not entitle the ... defendant to a vacatur of the judgment of conviction (see, People v Ferreras, 70 NY2d 630; People v Satterfield, 66 NY2d 796, 799; People v Liggins, 181 AD2d 916).

Section 440.10 permits denial of a motion without a hearing when the defendant fails to show grounds sufficient to disturb the verdict.

People v. Carter · filed 1993-12-30

His failure to demonstrate grounds sufficient to disturb the verdict made denial of his CPL 330.30 and 440.10 motions without a hearing appropriate.

Section 440.10(3)(a) permits denial of a motion to vacate without a hearing when the defendant knew at trial of the material underlying the claim.

People v. Adorno · filed 1994-03-07(3)(a)

Under the circumstances, the court was justified in denying without a hearing the defendant’s motion to vacate his judgment of conviction, made some four- and-one-half years after that judgment was rendered (see, People v Friedgood, 58 NY2d 467, 470-471; People v Donovon, 107 AD2d 433, 443-444; CPL 440.10 [3] [a]).

A section 440.10 motion requires a hearing when unresolved facts concern whether the defendant knowingly waived the right to testify before the Grand Jury.

People v. McMoore · filed 1994-04-07

County Court should have held a hearing on defendant’s CPL 440.10 motion to determine the circumstances of defendant’s alleged waiver of his right to testify before the Grand Jury (see, People v Matay, 82 AD2d 867).

Section 440.10 does not require a hearing when the court finds the affidavit supporting the motion unworthy of credit.

People v. Youngblood · filed 1994-07-21

Finally, on the CPL 440.10 motion, ... affidavit which was obviously motivated by the fact that he had somehow become romantically involved with the defendant and therefore there was no basis to credit that affidavit and to order a hearing on the motion.

Section 440.10 permits denial of a motion to vacate without a hearing when the alleged facts, even if true, would not justify vacatur.

People v. Silvera · filed 1994-11-07

We also find that the Supreme Court did not err in denying, without a hearing, the branch of the defendant’s motion which was to vacate the judgment of conviction pursuant to CPL 440.10. The facts set forth in the defendant’s motion papers, even if true, would not entitle the defendant to a vacatur of the judgment of conviction (see, People v Ferreras, 70 NY2d 630; People v Satterfield, 66 NY2d 796, 799; People v Liggins, 181 AD2d 916).

A CPL 440.10 motion supported by affidavits identifying potentially decisive witnesses cannot be summarily denied when a hearing is needed to assess counsel’s awareness of those witnesses and reasons for not calling them.

People v. Park · filed 1995-01-30

Under the particular circumstances of this case, we find that it was error to summarily deny the defendant’s motion to vacate the judgment of conviction (see, CPL 440.10) on the ground that he was denied the effective assistance of trial counsel.

A CPL 440.10 motion does not require a hearing when the record and submissions establish that counsel provided meaningful representation.

People v. Flood · filed 1995-03-20

We find no merit to the defendant’s contention that the trial court erred in denying his motion pursuant to CPL 440.10 without a hearing. Since the record and the submissions, viewed in the totality of the circumstances of the case, established that counsel provided the defendant with meaningful representation, a hearing was unnecessary (see, People v Herrera, 197 AD2d 706).

A court may decide a CPL 440.10 motion without a hearing when the record and submissions suffice to resolve the claim.

People v. Shamblee · filed 1995-12-14

Contrary to defendant’s assertion, County Court did not err by deciding his CPL 440.10 motion without a hearing since the issue of ineffective assistance of counsel could be determined from the record and submissions which reveal " 'the existence of a * * * strategy that might well have been pursued by a reasonably competent attorney’ ” (People v Cutting, 210 AD2d 791, 792, lv denied 85 NY2d 971, quoting People v Satterfield, 66 NY2d 796, 799).

A motion to vacate under § 440.10 may be denied without a hearing when the defendant fails to show that the facts sought to be established are material and would entitle him to relief.

People v. Spencer · filed 1996-04-09

The trial court properly denied defendant’s motion to vacate the judgment of conviction without a hearing since he failed to demonstrate that the facts sought to be established were material and would entitle him to relief (People v Satterfield, 66 NY2d 796, 799).

A CPL 440.10 ineffective-assistance claim may be denied without a hearing when it rests on conclusory allegations that fail to show how the defendant’s rights were violated.

People v. Brown · filed 1996-05-02

Defendant’s claim in this regard is based on bald conclusory allegations that lack any showing of how his rights were violated (see, People v Sturgis, 199 AD2d 549, 550, lvs denied 83 NY2d 858, 84 NY2d 833). ... We conclude, therefore, that it was not error for County Court to deny this part of defendant’s CPL 440.10 motion without a hearing (see, People v Brown, 176 AD2d 641, lv denied 79 NY2d 944).

A motion under CPL 440.10(1)(c) alleging knowing use of false testimony does not require a hearing when the evidence raises no factual issue about the testimony’s falsity or the prosecutor’s knowledge.

People v. Stern · filed 1996-04-18(1)(c)

Defendant’s motion to vacate the judgment was also based on a claim that the judgment was procured by the knowing use of false testimony by the prosecutor (CPL 440.10 [1] [c]). However, since the bank records and other evidence did not establish that DaSilva’s testimony concerning certain bank transactions, which occurred ten years before, was false, rather than simply mistaken, and there was no evidence at all indicating that the prosecutor knew or should have known that the testimony was false, defendant failed to raise an issue of fact requiring a hearing (see, People v Brown, 56 NY2d 242; People v Portalatin, 132 AD2d 581, lv denied 70 NY2d 716).

A CPL 440.10 motion requires no hearing when the court can decide it on the record and the defendant’s submissions.

People v. Smith · filed 1996-05-02

Furthermore, we find no merit to defendant’s argument that County Court improperly denied his CPL 440.10 motion without a hearing. ... Where, as here, that motion can be decided on the record and defendant’s submissions, no hearing is required (People v Satterfield, supra, at 799).

Insufficient allegations do not require a hearing on a CPL 440.10 motion.

People v. Vecchio · filed 1996-06-13

We also conclude that defendant’s allegations were insufficient to require a hearing on his CPL 440.10 motion (see, People v Crippen, 196 AD2d 548, 549, lv denied 82 NY2d 848).

A court must hold a hearing before making findings on a CPL 440.10 motion when the motion papers raise a factual question, even if neither party requests one.

People v. Rahman · filed 1996-09-30

Therefore, under the particular circumstances of this case, it was error for the Supreme Court to make its findings without directing a hearing, notwithstanding the parties’ failure to insist upon such (see, People v Rahman, 155 Misc 2d 60).

CPL 440.10 does not require a hearing when documentary evidence conclusively refutes the claims in a motion to vacate.

People v. Mastropietro · filed 1996-10-17

Accordingly, defendant’s assertions have been conclusively refuted by documentary evidence, and there was no need for a hearing as urged by defendant (cf., People v Session, 34 NY2d 254, 256).

A court may deny a CPL 440.10 motion without a hearing when the ineffective-assistance claims merely second-guess counsel’s trial strategy.

People v. Rice · filed 1996-12-23

The court properly denied the defendant’s motion pursuant to CPL 440.10 without holding a hearing. The defendant’s claims of ineffective assistance of counsel amounted to second guessing defense counsel’s trial strategy (see, People v Satterfield, 66 NY2d 796, 799).

A CPL 440.10 motion does not require a hearing when the defendant’s allegations are factually unsupported.

People v. Lake · filed 1997-01-30

Insofar as defendant contends that he was denied effective assistance of counsel because an alleged eyewitness was not contacted, we note that defendant did not provide County Court with the substance of the account of said witness and, as such, defendant’s allegations were factually unsupported and insufficient to require a hearing.

A CPL 440.10 motion to vacate a judgment may be denied without a hearing.

People v. Catter · filed 1997-03-24

Additionally; it was not error for the court to deny the defendant’s motion pursuant to CPL 440.10 without a hearing (see, People v Satterfield, 66 NY2d 796; People v Robinson, 211 AD2d 733).

A CPL 440.10 motion may be denied without a hearing or a response from the People when the claim can be resolved on the trial record.

People v. Orr · filed 1997-06-10(2)(b)

The court properly denied defendant’s CPL 440.10 motion without a hearing, and without requiring a response from the People (see, CPL 440.10 [2] [b]; 440.30). Defendant’s ineffective assistance claim, based primarily on counsel’s failure to utilize purported impeachment material that was undisputedly in counsel’s possession, raised no issue that could not be resolved on the trial record, which establishes that defendant received meaningful representation (People v Baldi, 54 NY2d 137, 146).

A CPL 440.10 motion may be denied without a hearing when the record and the defendant’s submissions are sufficient to decide it.

People v. Alstin · filed 1997-05-22

Nor are we persuaded that County Court imprevidently exercised its discretion by denying defendant’s CPL 440.10 motion without a hearing.

A § 440.10 motion may be denied without a hearing when the record resolves the claims and the defendant fails to allege facts sufficient for relief.

People v. Partridge · filed 1997-09-11

Finally, we are unpersuaded that County Court abused its discretion in denying defendant’s CPL article 440 motion without a hearing inasmuch as the issues raised in defendant’s moving papers—ineffective assistance of counsel, coercion, off-the-record promises and the erroneous status of his health— could be decided on the basis of the record and he has failed to set forth facts sufficient to demonstrate his entitlement to relief (see, People v Alstin, 239 AD2d 790; People v Williams, 237 AD2d 644).

A CPL 440.10 motion may be denied without a hearing when its alleged factual basis is speculative.

People v. Major · filed 1997-10-14

The court properly denied, without a hearing, defendant’s CPL 440.10 motion to vacate the judgment made on the ground that Brady material was not disclosed. ... The alleged factual basis for the motion consisted entirely of speculation, based primarily on a newspaper article proven to be inaccurate.

A CPL 440.10 motion may be denied without a hearing when the record establishes that the defendant’s plea was knowing, voluntary and intelligent.

People v. Hoppe · filed 1997-11-26

We also find no error in County Court’s denial of defendant’s CPL 440.10 motion without a hearing. Our review of the record satisfies us that defendant entered a knowing, voluntary and intelligent plea to the charges in question.

Section 440.10 permits denial of a motion without a hearing when its factual claim is conclusory, unsupported, and contradicted by the defendant’s earlier statements.

People v. Folks · filed 1998-01-22

His belated claim, made four and a half years after his arrest and unsupported by any evidence other than his own conclusory statement, that he had stayed in the apartment where he was arrested for approximately two months prior to his arrest, flies in the face of all his prior statements made at the time of his arrest and prosecution, and the court’s denial of his CPL 440.10 motion, without a hearing, was proper.

A hearing on a CPL 440.10 motion is not required when the proposed nonrecord witness testimony would be cumulative or useful only for impeachment.

People v. English · filed 1998-01-29

Here, we conclude that defendant’s motion was properly denied without a hearing since the majority of the nonrecord witness statements offered by defendant established that, if called, these witnesses would only have offered cumulative or impeachment evidence.

A CPL 440.10 motion containing only conclusory allegations may be summarily denied.

People v. Urbina · filed 1998-03-03

Summary denial of defendant’s CPL 440.10 motion, containing only conclusory allegations, was proper.

A CPL 440.10 motion may be denied without a hearing when the allegation is unsubstantiated and the alleged nondisclosure could not have affected the verdict.

People v. Oliviery-Perez · filed 1998-03-23

However, we conclude that in this case, no hearing is required. ... Accordingly, the defendant’s motion pursuant to CPL 440.10 was properly denied without a hearing (see, People v Bigtree, 231 AD2d 802; People v Crippen, 196 AD2d 548).

A motion under CPL 440.10(1)(b) alleging that a guilty plea was procured by duress, misrepresentation or fraud may be denied without a hearing when the record refutes the allegation.

People v. Hadsell · filed 1998-04-16(1)(b)

Next, we conclude that County Court properly denied defendant’s motion to vacate the judgment of conviction without a hearing. Once again, defendant’s contention that his plea was “procured by duress, misrepresentation or fraud on the part of the court or a prosecutor” (CPL 440.10 [1] [b]) is not supported in the record, which amply supports the conclusion that, despite the possibility of a sentence higher than that recommended, defendant nevertheless chose to plead guilty and was not coerced into doing so.

A court may deny a CPL 440.10 motion without a hearing when the defendant offers only speculative and conclusory allegations.

People v. Turcotte · filed 1998-07-23

As to the denial of the motion to vacate the judgment of conviction without a hearing (see, CPL 440.10), again we find no error.

A CPL 440.10 motion may be denied without a hearing when its lack of merit is apparent from the submitted papers.

People v. Doshi · filed 1998-05-14

As the lack of merit of the CPL 440.10 claims was apparent from the submitted papers, the court properly denied, without a hearing, defendant’s CPL 440.10 motion to vacate the judgment of conviction.

A court may deny a CPL 440.10 motion to vacate a conviction without a hearing.

People v. Terwilliger · filed 1998-11-19

Lastly, we perceive no error in County Court’s denial of defendant’s CPL 440.10 motion without a hearing (see, People v Grasso, 237 AD2d 741, 743, lv denied 89 NY2d 1035; People v Davenport, 233 AD2d 771, 773, lv denied 89 NY2d 1091).

A court may decide a CPL 440.10 motion without a hearing when the record and motion papers are adequate.

People v. Loomis · filed 1998-12-17

Defendant’s assertion that County Court erred by deciding his CPL 440.10 motion without a hearing is also rejected. A hearing was unnecessary as County Court could adequately review the matter based upon the contents of the record and the motion papers (see, People v Satterfield, 66 NY2d 796, 799).

A CPL 440.10 motion may be denied without an evidentiary hearing when the only person who could provide additional material information is deceased.

People v. Cotto · filed 1999-03-04

The motion was properly denied without an evidentiary hearing ... because trial counsel, the only person who could have provided any material information not already before the motion court, was deceased.

Section 440.10 permits denial of a motion to vacate judgment without a hearing when the claims require no development of non-record facts.

People v. Swackhammer · filed 1999-04-29

Defendant’s CPL 440.10 motion was properly denied without a hearing as none of the claims raised in his motion required development of non-record facts.

A CPL 440.10 motion may be denied without a hearing when the defendant fails to provide sworn factual allegations supporting a vague alibi claim.

People v. Castro · filed 1999-07-08

Moreover, given the defendant’s failure to provide sworn allegations of fact to support his vague claim of possible alibi witnesses and the nature of their testimony, the court properly denied his CPL 440.10 motion without a hearing.

Section 440.10 does not require a hearing when a broadly construed motion states no claim warranting one.

People v. Espinal · filed 1999-06-29

Defendant’s CPL 440.10 motion was properly denied. The ...motion, even when read as a whole and broadly construed, does not state a claim warranting a hearing and does not raise the issue asserted on appeal.

Section 440.10 requires a hearing when the record leaves a factual question about whether an unfulfilled promise induced the defendant’s guilty plea.

People v. Di Donato · filed 1999-07-15

The foregoing raises questions of fact concerning defendant’s motivation for entering his plea of guilty. The extent to which County Court’s unfulfilled promise provided an inducement is not clear from this record. Therefore, the matter must be remitted for a hearing to adduce proof relevant to this issue.

Section 440.10 permits denial of a motion without a hearing when the defendant offers only an unsubstantiated allegation that counsel failed to convey a plea offer.

People v. Spencer · filed 2000-05-11

Finally, we reject defendant’s assertion that County Court abused its discretion in denying, without a hearing, his pro se CPL 440.10 motion.

Section 440.10 permits denial of a motion to vacate without a hearing when the record and the defendant’s submissions resolve all issues raised.

People v. Dunsmore · filed 2000-09-28

Finally, based upon our review of the record, we conclude that County Court did not err in directing defendant to pay the agreed-upon restitution (see, People v Esquivel, 261 AD2d 649; People v Phillips, 247 AD2d 655, 656) or in denying defendant’s postjudgment motion without a hearing since all issues raised could be decided from the record and defendant’s submissions (see, People v Myers, 241 AD2d 705, 707, lv denied 91 NY2d 877; People v Smith, 227 AD2d 655, 656, lv denied 88 NY2d 994).

Section 440.10 permits summary denial without a hearing when the trial record is sufficient to review and refute the claim.

People v. Brock · filed 2000-10-03

The court’s summary denial of defendant’s CPL 440.10 motion was proper because, as the court found, the record was sufficient to permit review of defendant’s ineffective assistance claim, and such claim was refuted by the trial record. Defendant’s claim did not raise any issues of a type that would have necessitated a hearing.

A hearing on a section 440.10 motion is required only when the defendant establishes nonrecord material facts that call the judgment’s validity into question.

People v. Hoke · filed 2000-10-26

Finally, County Court did not commit error by denying defendant’s CPL 440.10 motion without conducting an evidentiary hearing. ... Thus, defendant’s hearing deficiencies are not a nonrecord material fact which would require an evidentiary hearing before resolution of the motion.

Section 440.10 permits a court to deny a motion to vacate without a hearing when the asserted grounds are insufficient.

People v. Roberson · filed 2000-10-31

The court properly denied defendant’s CPL 440.10 motion without a hearing.

Section 440.10 permits a motion to vacate a conviction to be denied without a hearing when it is procedurally defective and lacks merit.

People v. Yun Ping Lin · filed 2001-01-30

Defendant’s motion to set aside his conviction was properly denied without a hearing. The motion court properly found the motion to be both procedurally defective and without merit.

A motion to vacate a judgment requires a hearing when the defendant’s papers raise factual questions about counsel’s representation and the validity of a guilty plea.

People v. Thomson · filed 2001-01-04

Absent any discussion of intoxication during the plea allocution which indicated that defendant was actually aware of, and knowingly waived, his right to present evidence of intoxication to negate the element of intent, a hearing is required to resolve the factual issues raised in defendant’s papers (see, e.g., People v Shields, 205 AD2d 833, 834-835).

A CPL 440.10 movant must submit facts sufficient to warrant an evidentiary hearing; speculation about police involvement does not require one.

People v. Brooks · filed 2001-05-31

Order, same court and Justice, entered on or about April 7, 2000, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed. ... Defendant failed to submit facts sufficient to warrant a hearing on whether the complainant was acting as a police agent when he recorded a telephone call he received from defendant during the pendency of the case (see, People v Bent, 160 AD2d 1176, lv denied 76 NY2d 937). ... Inasmuch as the People represented that the recording was not made with police involvement, and there was no showing to the contrary, the court’s inquiry was sufficient and an evidentiary hearing was not required.

A court abuses its discretion by summarily denying a section 440.10 motion for lack of trial counsel’s affidavit when the defendant adequately explains its absence.

People v. Gil · filed 2001-08-16

In the instant case, however, defendant provided a viable explanation for the failure to include such affidavit — i.e., counsel’s disbarment prior to defendant’s bringing the motion, buttressed by the complaint filed with the Grievance Committee regarding Rojas’s conduct. It was, therefore, an abuse of discretion for the court to summarily deny defendant’s section 440.10 motion on the basis of this procedural deficiency.

Section 440.10 permits denial of a motion to vacate without a hearing when the motion raises only record-based issues and no factual issue requires a hearing.

People v. Vasquez · filed 2001-10-16

The motion raised the same issues that defendant raises on direct appeal, all of which are based on the record, and there were no factual issues requiring a hearing.

A CPL 440.10 motion to vacate judgment does not require a hearing when no factual issues warrant one.

People v. Lopez · filed 2001-12-13

There were no factual issues warranting a hearing on defendant’s motion to vacate judgment (see, People v Satterfield, 66 NY2d 796; People v Dominguez, 257 AD2d 511, lv denied 93 NY2d 872).

Section 440.10(1)(h) permits an evidentiary hearing on a motion to vacate when a defendant may be able to establish actual bias from a juror’s failure to disclose a felony conviction.

People v. Mercado · filed 2002-01-08(1)(h)

However, defendant is entitled to an evidentiary hearing at which he may attempt to establish that the juror’s failure to disclose his conviction resulted in actual bias (United States v Boney, 68 F3d 497; United States v Boney, 977 F2d 624; see also, Young v United States, 694 A2d 891 [DC 1997]).

A CPL 440.10 motion may be denied without a hearing when the defendant fails to substantiate the grounds for vacating the judgment.

People v. Gil · filed 2002-02-05

Defendant’s CPL 440.10 motion was properly denied without a hearing (see, People v Satterfield, 66 NY2d 796).

Section 440.10 permits summary denial of a motion to vacate when the moving papers reveal no issue requiring a hearing.

People v. Chen · filed 2002-04-18

Summary denial of defendant’s motion to vacate judgment alleging ineffectiveness of counsel was proper since defendant’s moving, papers failed to reveal an issue to be resolved by a hearing (People v Satterfield, 66 NY2d 796; People v Ford, 46 NY2d 1021, 1023).

A CPL 440.10 motion may be summarily denied when the moving papers reveal no issue requiring a hearing.

People v. Stewart · filed 2002-06-25

Summary denial of defendant’s CPL 440.10 motion was proper since his moving papers failed to reveal an issue to be resolved by a hearing.

A section 440.10 motion alleging ineffective assistance may be denied without a hearing when the defendant provides neither trial counsel’s affidavit nor an explanation for its absence.

People v. Johnson · filed 2002-03-26

The court properly denied, without a hearing, defendant’s motion to vacate his judgment of conviction on the ground of ineffective assistance of counsel. Defendant failed to include an affidavit of his trial counsel explaining why defendant’s father was not called as a witness, or an explanation as to why such affidavit was not included (see, People v Morales, 58 NY2d 1008; People v Gil, 285 AD2d 7, 11-12).

A CPL 440.10 motion may be denied without an evidentiary hearing when unsupported allegations fail to raise an issue of fact.

People v. Sussman · filed 2002-10-15

Defendant’s CPL 440.10 motion alleging ineffective assistance of counsel was properly denied without an evidentiary hearing. As determined by the motion court, defendant’s unsupported allegations that defense counsel did not properly investigate his alibi claims were insufficient to raise an issue of fact, since they were thoroughly refuted by trial counsel’s detailed affirmation (see People v Satterfield, 66 NY2d 796, 799-800).

Section 440.10 permits a hearing on an ineffective-assistance motion alleging trial counsel failed to convey a plea offer, even if the defendant neither submits counsel’s affidavit nor explains its absence.

People v. Radcliffe · filed 2002-10-21

The defendant’s application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary. ... Accordingly, the County Court should have held a hearing on the defendant’s motion.

A defendant is not entitled to a hearing on a CPL 440.10 motion when the allegations, even if true, would not establish ineffective assistance of counsel.

People v. Boozer · filed 2002-10-22

Defendant was not entitled to a hearing on his CPL 440.10 motion since his allegation that his attorney provided improper and incorrect advice, which discouraged defendant from choosing to testify before the grand jury, would not, if true, establish ineffective assistance of counsel (cf. People v Wiggins, 89 NY2d 872).

A court need not hold a hearing on a motion to vacate judgment when the trial record and party submissions are sufficient.

People v. Murray · filed 2002-12-19

Defendant’s challenge to the denial of his CPL article 440 motion without a hearing is similarly unavailing. It is well established that in deciding such a motion, a court is not required to hold a hearing if the trial record and party submissions are sufficient (see id. at 799).

Section 440.10 requires a hearing when a factual dispute about counsel’s conduct cannot be resolved from affidavits alone.

People v. Smith · filed 2003-01-30

We reverse and remand for a hearing on the motion to vacate. ... This issue cannot be resolved on affidavits alone, but only after a hearing at which testimony is received, affording the court a basis on which to make credibility determinations.

A motion to vacate judgment alleging ineffective assistance of counsel does not warrant a hearing when the defendant’s papers raise no factual issue.

People v. Booker · filed 2003-01-30

The court properly denied a pro se postconviction application by defendant that the court treated as a motion to vacate judgment alleging ineffective assistance of counsel. ... his papers did not raise a factual issue warranting a hearing (see People v Satterfield, 66 NY2d 796, 799-800).

Filing a section 440.10 motion does not itself entitle a defendant to an evidentiary hearing at which to call witnesses or present evidence.

People v. Diaz · filed 2003-02-28

The filing of a postjudgment motion pursuant to CPL 440.10 does not create a right to an evidentiary proceeding in which defendant is entitled to call witnesses or present evidence.

A court may deny a section 440.10 motion without a hearing when an effectiveness claim can be addressed on a pending appeal and the motion alleges no concrete facts requiring a hearing.

People v. Stewart · filed 2003-07-17(2)(b)

Contrary to defendant’s assertion, County Court did not err by deciding his CPL article 440 motion without a hearing. Sufficient information regarding effectiveness of counsel appeared on the record and could be addressed in defendant’s pending appeal (see CPL 440.10 [2] [b]), and defendant’s conclusory and vague allegations in his motion papers were inadequate to raise an issue (see People v Hickey, 277 AD2d 511, 512 [2000], lv denied 95 NY2d 964 [2000]; People v Shamblee, 222 AD2d 834, 835 [1995], lv denied 88 NY2d 994 [1996]).

A motion to vacate judgment based on ineffective assistance does not warrant a hearing when the defendant’s submissions fail to substantiate the claim.

People v. Rosario · filed 2003-10-07

Defendant’s submissions on his motion, which did not include affidavits from trial counsel or from any of the uncalled witnesses, did not substantiate his claims and did not warrant a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).

A defendant’s affidavit can warrant an evidentiary hearing on a CPL 440.10 motion when it sufficiently alleges prejudice from counsel’s incorrect advice about deportation.

People v. McKenzie · filed 2004-02-09

The allegations set forth in the defendant’s affidavit are sufficient to afford him a hearing on his CPL 440.10 motion (see People v Mendoza, 82 NY2d 415, 426 [1993]; cf. People v McDonald, supra at 115).

A CPL 440.10 motion alleging ineffective assistance may be denied without a hearing when the nature of the claim does not warrant one.

People v. Laraby · filed 2004-02-11

Finally, “given the nature of the claimed ineffective assistance” of counsel, the court properly denied defendant’s motion pursuant to CPL 440.10 without conducting a hearing (People v Satterfield, 66 NY2d 796, 799 [1985]; see People v Lake, 235 AD2d 921, 921-922 [1997], lv denied 89 NY2d 1096 [1997]).

A CPL 440.10 motion may be denied without a hearing when the record and motion submissions are sufficient to review the issues raised.

People v. Clarke · filed 2004-03-04

Since the record and the submissions in the CPL 440.10 motion were sufficient for review of these issues, County Court did not err in denying defendant’s motion without a hearing (see People v Beverly, 299 AD2d 744, 745 [2002], lv denied 99 NY2d 652 [2003]).

Section 440.10 permits denial of a motion to vacate a guilty plea without a hearing when the defendant’s factual allegations are insufficient to support the claim.

People v. Urena · filed 2004-05-11

The court properly denied defendant’s CPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]). Defendant’s factual allegations were insufficient to support a claim that his guilty plea should be vacated on the ground of ineffective assistance of counsel (see Hill v Lockhart, 474 US 52, 59-60 [1985]; People v McDonald, 1 NY3d 109 [2003]).

Section 440.10 permits a hearing on an ineffective assistance claim despite the availability of direct appeal when the claim may involve facts outside the trial record.

People v. Tomaski · filed 2012-07-09

This hearing was granted, notwithstanding the defendant’s ability to raise ineffective assistance of counsel on direct appeal since the basis for such claim raises factual issues and may implicate off the record facts, including reasons for defense counsels’ actions.

A court must hold a hearing before denying a CPL 440.10 motion that raises issues of fact about defense counsel’s advice.

COOPERWOOD, DEMETRIUS, PEOPLE v · filed 2012-09-28

We thus conclude that defendant raised issues of fact in support of his motion and that County Court erred in denying his motion without conducting a hearing.

A court may deny a CPL 440.10 motion without a hearing when the record and submissions suffice to decide it and no factual dispute requires a hearing.

People v. Yanayaco · filed 2012-10-02

The court properly exercised its discretion (see People v Samandarov, 13 NY3d 433, 439-440 [2009]) in denying the CPL 440.10 motion without holding a hearing. The trial record and the parties’ submissions were sufficient to decide the motion, and there was no factual dispute requiring a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).

CPL 440.10 requires a hearing before a motion to vacate judgment is decided when factual questions about counsel’s competence remain.

People v. Pina · filed 2014-02-06

The motion court erred in deciding defendant’s CPL 440.10 motion without conducting a hearing because there are factual questions as to counsel’s mental acuity during the time immediately proceeding defendant’s plea and at the time of the plea.

A court may deny a CPL 440.10 motion without a hearing when the record and motion papers permit adequate review.

People v. Lydecker · filed 2014-04-10

In that regard, we reject defendant’s assertion that County Court erred by failing to conduct a hearing on the motion inasmuch as the record and motion papers before that court permitted an adequate review (see People v Carter, 105 AD3d 1149, 1151 [2013]; People v Demetsenare, 14 AD3d 792, 793 [2005]; see also People v LaPierre, 108 AD3d 945, 946 [2013]).

When a CPL 440.10 ineffective assistance claim is remitted for a hearing, the court must obtain an express, knowing, and intelligent waiver or hold the hearing and decide the claim.

People v. Baker · filed 2014-04-30

Accordingly, we remit the matter to the County Court, ... Dutchess County, to either obtain the defendant’s express, knowing, and intelligent waiver of his right to the hearing on his ineffective assistance of counsel claim, or in the absence of such waiver, to conduct that hearing and make a new determination of that branch of the defendant’s motion which was pursuant to CPL 440.10 to vacate the judgment of conviction on that ground.

A CPL 440.10 motion alleging ineffective assistance may be denied without a hearing when the defendant fails to show sufficiently that counsel’s alleged deficiency affected the defense.

People v. Rampersaud · filed 2014-10-01

Contrary to the defendant’s contention, the County Court properly denied his motion without an evidentiary hearing. Under the particular circumstances of this case, the defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his attorney’s allegedly deficient advice had the requisite impact on his defense under either the federal or state standards.

A trial court has discretion to decide whether to hold a hearing on a CPL 440.10 motion, subject to review for abuse of discretion.

The People v. Gross · filed 2016-02-18

It is within the trial court's discretion to determine whether a hearing on a CPL 440.10 motion should be ordered (see People v Jones, 24 NY3d 623, 635 [2014]; People v Satterfield, 66 NY2d 796, 799 [1985]). This Court, however, may review that determination for an abuse of discretion (see Jones, 24 NY3d at 635).

Section 440.10(2)(b) permits denial of a motion to vacate without a hearing when sufficient facts on the record allow adequate review of the claim.

People v. Zhagnay · filed 2016-09-14(2)(b)

Contrary to the defendant’s contention, the Supreme Court properly denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that sufficient facts appeared on the record to permit adequate review of his claim of ineffective assistance of counsel (see CPL 440.10 [2] [b]).

A court must hold a hearing on a CPL 440.10 motion before rejecting a material claim based on the defendant’s credibility.

People v. Samuels · filed 2016-10-04

Where a CPL 440.10 motion is made, a hearing to develop additional background facts is not “invariably necessary” (People v Satterfield, 66 NY2d 796, 799 [1985]). ... Based upon the foregoing principles, we find the motion court erred in denying defendant’s motion without a hearing.

A CPL 440.10 motion warrants a hearing when the moving papers raise factual issues about whether trial counsel provided effective assistance.

People v. Mercado · filed 2017-02-23

Defendant's moving papers were sufficient to warrant a hearing on the motion. Factual issues exist as to whether defendant was deprived of effective assistance of counsel due to trial counsel's failure to ask the court to render a Sandoval ruling.

A CPL 440.10 motion requires a hearing when the defendant raises a sufficient issue that counsel failed to advise him of a potential intoxication defense affecting the voluntariness of his plea.

People v. Perry · filed 2017-03-23

Insofar as a defendant’s knowledge that the element of intent may be negated by the potential defense of intoxication is essential to a knowing and voluntary plea (see People v Doane, 145 AD3d 1088, 1089 [2016]) and there is no indication that defendant was aware of the intoxication defense and knowingly waived his right to present such evidence, we are persuaded that defendant has raised an issue sufficient to require a hearing (see People v Davey, 91 AD3d 1033, 1034 [2012]; People v Thomson, 279 AD2d 644, 645 [2001]).

A court may deny a hearing on a section 440.10 ineffective-assistance motion when the trial record and motion submissions establish that counsel’s strategy was reasonably competent.

SWITTS, RICHARD M., PEOPLE v · filed 2017-03-24

Defendant was not entitled to a hearing on the part of his CPL 440.10 motion alleging ineffective assistance of counsel because the trial record and the motion submissions, including an affidavit from defendant’s trial counsel, sufficiently established that counsel’s trial strategy was consistent with the actions of a reasonably competent attorney (see ... People v Satterfield, 66 NY2d 796, 799-800; People v King, 44 AD3d 366, 366, lv denied 9 NY3d 1035; see generally People v Henderson, 27 NY3d 509, 514).

A hearing on a § 440.10 motion is warranted when material facts outside the record could entitle the defendant to relief and cannot be resolved on the motion papers.

People v. Cruz · filed 2017-07-06

Inasmuch as those questions “cannot be determined on the motion papers!,] . . . we remit for a hearing where proof can be presented on” them (People v Deyo, 82 AD3d at 1506).

A CPL 440.10 motion may be denied without a hearing when the parties’ submissions establish that the defendant was not deprived of effective assistance of counsel.

People v. Khan · filed 2017-08-30

The Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction. Contrary to the defendant’s contention, the court could determine from the parties’ submissions that the defendant was not deprived of the effective assistance of counsel (see People v Chin, 148 AD3d 926, 926-927 [2017]).

Section 440.10 permits a court to deny a motion to vacate judgment without a hearing in the proper exercise of its discretion.

People v. Alcantara · filed 2017-10-12

The court properly exercised its discretion in denying defendant’s CPL 440.10 motion without holding a hearing (see People v Samandarov, 13 NY3d 433, 439-440 [2009]).

A CPL 440.10 (1) (g) motion based on a witness’s recantation may be denied without a hearing when the submissions and trial record show that the recantation is wholly unreliable.

People v. Pringle · filed 2017-11-17(1)(g)

We therefore conclude that, “[n]otwithstanding the absence of an evidentiary hearing, the totality of the parties’ submissions along with the trial record warrant a factual finding that the recantation is totally unreliable” (id.), and that the court properly denied defendant’s motion.

Section 440.10 permits denial of a motion without an evidentiary hearing when the defendant’s allegations are conclusory, unsupported, or contradicted by the record.

People v. Pabon · filed 2018-01-11

In view of the foregoing, we conclude that County Court did not err in denying defendant's CPL 440.10 motion without first conducting an evidentiary hearing ( see People v Decker , 139 AD3d 1113, 1117 [2016], lv denied 28 NY3d 928 [2016]; People v Griffin , 89 AD3d 1235, 1237 [2011]; compare People v Rapp , 133 AD3d 979, 980-981 [2015]; People v Deyo , 82 AD3d 1503, 1504-1506 [2011], lv denied 17 NY3d 815 [2011]).

A CPL 440.10 motion may be denied without a hearing when the movant provides no sufficient evidentiary basis for the claim.

People v. Corby · filed 2019-12-19

The court properly exercised its discretion in denying defendant's motion without holding a hearing ( see People v Samandarov , 13 NY3d 433, 439-440 [2009]). Defendant has not established that the allegedly exculpatory information that he claims should have been disclosed under Brady v Maryland (373 US 83 [1963]) ever existed, nor has he provided a sufficient evidentiary basis to warrant a hearing into whether or not it existed ( see People v Ozuna , 7 NY3d 913, 915 [2006]; People v Ford , 46 NY2d 1021 [1979]).

Section 440.10 permits denial of a motion to vacate without a hearing when the defendant does not allege facts that, if established, would entitle the defendant to relief.

People v. Santana · filed 2020-01-16

In light of the foregoing, County Court properly denied defendant's CPL 440.10 motion without a hearing, as defendant "did not support his claim of ineffective assistance of counsel with factual allegations that, if established, would entitle him to relief" ( People v Flower , 173 AD3d at 1458; see People v Werkheiser , 171 AD3d 1297, 1306 [2019], lv denied 33 NY3d 1109 [2019]; People v Nelson , 171 AD3d 1251, 1256 [2019]).

A trial court may deny a CPL 440.10 motion without a hearing when doing so is within its discretion.

The People v. Ortiz · filed 2022-01-11

Furthermore, defendant failed to demonstrate that he was denied the effective assistance of counsel (see Strickland v Washington, 466 US 668, 687, 694 [1984]; People v Benevento, 91 NY2d 708, 713 [1998]) and the trial court did not abuse its discretion by denying defendant’s CPL 440.10 motion without a hearing (see People v Gross, 26 NY3d 689, 696-697 [2016]).

A motion under CPL 440.10(1)(h) warrants a hearing when the defendant’s affidavit and supporting evidence sufficiently raise whether counsel failed to investigate and advise on potential challenges to search warrants before a guilty plea.

People v. Tindley · filed 2022-02-09(1)(h)

Here, the defendant's averments in his affidavit, along with other evidence submitted in support of his motion, were sufficient to warrant a hearing on the issue of whether his former counsel was ineffective for failing to conduct an appropriate investigation to determine whether pretrial motions concerning the search warrants should be made, and failing to advise him of potential challenges to the legality of the search warrants before he pleaded guilty to possession counts predicated on physical evidence recovered pursuant to the warrants ( see People v Flinn , 188 AD3d at 1094-1095; People v Balcerak , 144 AD3d 833, 834; see also People v Caldavado , 26 NY3d 1034, 1037; cf. People v Wright , 27 NY3d 516, 522). Accordingly, we reverse the order and remit the matter to the Supreme Court, Queens County, for a hearing and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction ( see People v Bernard , 195 AD3d 740; People v Picca , 97 AD3d 170, 188).

A section 440.10 motion may be denied without a hearing when the claim rests on conclusory, self-serving allegations.

People v. Mazzeo · filed 2022-02-17

Finally, Supreme Court's summary denial of defendant's CPL article 440 motion was [*6]correct. ... Defendant's assertion that the Attorney General improperly obtained grand jury information related to his prior convictions was supported by only conclusory, self-serving allegations ( see People v Beverly , 196 AD3d 864, 865 [2021], lv denied 37 NY3d 1058 [2021]).

A CPL 440.10 motion based on unsubstantiated and conclusory allegations of ineffective assistance of counsel may be denied without a hearing.

People v. Baez · filed 2022-02-23

The defendant's claim of ineffective assistance of counsel raised in his motion pursuant to CPL 440.10 was based on unsubstantiated and conclusory allegations. Thus, the Supreme Court properly denied the defendant's motion without a hearing ( see People v Campbell , 148 AD3d 821, 822).

CPL 440.10 requires a hearing on a motion to vacate a judgment only when the submissions show material nonrecord facts that would entitle the defendant to relief.

People v. Baez-Arias · filed 2022-03-17

"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Marte-Feliz , 192 AD3d at 1397-1398 [internal quotation marks and citations omitted]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]).

A CPL 440.10 motion may be denied without a hearing when the court has sufficient information to decide it and no factual dispute requires a hearing.

People v. Ferguson · filed 2022-04-28

The court providently exercised its discretion ( see People v Samandarov , 13 NY3d 433, 439-440 [2009]) in denying, without a hearing, defendant's CPL 440.10 motion alleging ineffective assistance of counsel. The court had sufficient information upon which to determine that defendant received effective assistance under the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]), and there was no factual dispute requiring a hearing ( see People v Satterfield , 66 NY2d 796, 799-800 [1985]).

A court may deny a CPL 440.10 motion without a hearing when the motion submissions and trial record raise no factual issue requiring one.

People v. Moses · filed 2022-05-19

The court properly exercised its discretion in denying defendant's CPL 440.10 motion without holding a hearing ( see People v Samandarov , 13 NY3d 433, 439-440 [2009]). The submissions on the motion, along with the trial record, were sufficient to support the conclusion that defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]), and that there were no factual issues requiring a hearing.

Section 440.10 permits a court to deny a motion to vacate a judgment without a hearing when the defendant’s claims are contradicted by the record or lack supporting evidence.

People v. See · filed 2022-06-09

Turning to defendant's CPL 440.10 motion, "a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ( People v Beverly , 196 AD3d 864, 865 [2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1058 [2021]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]). ... Under these circumstances, County Court did not abuse its discretion in summarily denying defendant's motion ( see People v Vittengl , 203 AD3d 1390, 1393 [2022]; People v Spradlin , 188 AD3d 1454, 1460-1461 [2020], lv denied 37 NY3d 960 [2021]).

A court may deny a Section 440.10 motion without a hearing when the defendant's claim of prejudice is unsupported and conclusory.

People v. Quinn · filed 2022-11-23

Accordingly, although the trial judge's conduct was no doubt improper, defendant's assertions as to how it prejudiced him are "unsubstantiated and conclusory" ( People v Gilmore , 200 AD3d 1184, 1194 [3d Dept 2021] [citations omitted], lv denied 38 NY3d 927 [2022]; see generally People v Provencher , 72 AD3d 1124, 1126 [3d Dept 2010]). Based on the foregoing, Supreme Court did not abuse its discretion in summarily denying defendant's CPL 440.10 motion.

A CPL 440.10 motion may be denied without a hearing when the submissions raise no material question of fact and the defendant's affidavit is insufficient to warrant one.

People v. Thomas · filed 2022-12-22

We further conclude that County Court did not abuse its discretion in denying defendant's CPL 440.10 motion without a hearing. ... The documents submitted by defendant detailing EPD's dashcam video preservation policy do not raise questions of material fact in this regard, and the averments contained in defendant's own affidavit were insufficient to warrant a hearing ( see People v See , 206 AD3d 1153, 1156 [3d Dept 2022]; People v Brandon , 133 AD3d 901, 903 [3d Dept 2015], lv denied 27 NY3d 992 [2016]).

A hearing on a CPL 440.10 motion is discretionary when no factual dispute requires resolution.

People v. Stewart · filed 2023-05-09

"[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination" ( People v Jones , 24 NY3d 623, 635 [2014]), and there were no factual disputes requiring resolution at an evidentiary hearing.

A court may deny a CPL 440.10 motion without a hearing when the claims are unsubstantiated or refuted by the trial record and raise no factual dispute.

People v. Fredericks · filed 2023-06-22

The court providently exercised its discretion in denying defendant's CPL 440.10 motion, without granting a hearing ( see People v Delorbe , 35 NY3d 112, 121 [2020]). The particular claims of ineffective assistance of counsel contained in the motion were unsubstantiated, refuted by the trial record, or insufficient to demonstrate counsel's ineffectiveness. Defendant did not obtain an affidavit from trial counsel or indicate that he had unsuccessfully attempted to do so ( see People v Wright , 27 NY3d 516, 522 [2016]), and he did not raise any factual dispute warranting a hearing ( see People v Samandarov , 13 NY3d 433, 439-440 [2009]).

Section 440.10 requires a hearing only when material facts outside the record, if established, would entitle the defendant to relief; a court may deny a motion without a hearing when the record contradicts the defendant’s unsupported claims.

People v. Wilcox · filed 2023-07-20

"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief. Furthermore, a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ( People v Marte-Feliz , 192 AD3d 1397, 1397-1398 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]; accord People v Podeswa , 205 AD3d 1139, 1140-1141 [3d Dept 2022], lv denied 38 NY3d 1135 [2022]). ... In light of the foregoing, it was not error for County Court to deny defendant's motion without a hearing ( see People v LaPierre , 108 AD3d 945, 946-947 [3d Dept 2013]).

A defendant seeking relief under § 440.10(1)(h) is entitled to a hearing when material facts outside the record could establish that the judgment violated a constitutional right.

People v. Maull · filed 2023-07-28(1)(h)

We review a court's summary denial of a CPL 440.10 motion for an abuse of discretion ( see People v Samandarov , 13 NY3d 433, 436 [2009]). On this record, the court abused its discretion in denying the motion without a hearing because there is ample evidence establishing that a factfinding hearing is necessary to determine whether law enforcement's eavesdropping violated defendant's right to counsel.

A court may hear from counsel before deciding a CPL 440.10 motion that raises intertwined ineffective-assistance and involuntary-plea claims.

People v. Jude · filed 2023-11-21

We reject defendant's contention that the court should have granted the CPL 440.10 motion on the papers, as it was reasonable for the court to want to hear from the attorney accused of providing ineffective assistance, and defendant's ineffective assistance claim was intertwined with his claim that his plea was involuntary.

A court may deny a CPL 440.10 motion without a hearing when the defendant fails to show prejudice from counsel’s alleged error and the record shows meaningful representation.

People v. Martinez · filed 2024-01-11

The court providently exercised its discretion in denying defendant's CPL 440.10 motion without a hearing. Defendant failed to demonstrate that he was prejudiced by his trial counsel's failure to contest the People's evidence on blood spatter analysis, and the record, viewed as a whole, shows that counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708 [1998]; Strickland v Washington , 466 US 668 [1984]).

A court may deny a CPL 440.10 motion without a hearing when the parties' submissions establish that the defendant was not deprived of effective assistance of counsel.

People v. Maffei · filed 2024-03-27

The Supreme Court did not err in denying the defendant's motion without a hearing. Contrary to the defendant's contention, the court could determine from the parties' submissions that the defendant was not deprived of the effective assistance of counsel ( see People v Viera , 200 AD3d 726, 727; People v Brown , 183 AD3d 910, 911-912).

A defendant seeking a hearing on a CPL 440.10 motion must show that material nonrecord facts, if established, would entitle the defendant to relief.

People v. Harries · filed 2024-04-04

As it relates to defendant's motion pursuant to CPL 440.10, "to demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief" ( People v Beverly , 196 AD3d 864, 865 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 37 NY3d 1058 [2021]).

A CPL 440.10 motion alleging ineffective assistance may be denied without an evidentiary hearing when the defendant fails to show that counsel’s alleged error had enough impact on the defense to warrant one.

People v. Singh · filed 2024-10-02

The Supreme Court properly denied the defendant's motion without an evidentiary hearing. The defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his attorney's alleged misstatement had the requisite impact on his defense under either the federal or state standards ( see People v Facey , 180 AD3d 927, 929; People v Rodriguez , 150 AD3d 1029, 1030-1031; People v Rampersaud , 121 AD3d 721, 722).

Section 440.10 permits a court to deny a motion to vacate without a hearing when doing so is a proper exercise of discretion.

People v. Tyler · filed 2024-12-19

The court providently exercised its discretion in denying the remainder of defendant's CPL 440.10 motion without granting a hearing ( see People v Delorbe , 35 NY3d 112, 121 [2020]).

Section 440.10 permits a court to deny a motion to vacate without a hearing when the moving papers lack sworn allegations supporting all essential facts.

People v. Kellum · filed 2024-12-26

"It is well settled that a court may deny a CPL 440.10 motion without conducting a hearing if 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" ( People v Dogan , 37 NY3d 1007, 1007-1008 [2021] [internal quotation marks, brackets and citation omitted]; see People v Santana , 179 AD3d 1299, 1303 [3d Dept 2020], lv denied 35 NY3d 973 [2020]).

A court may deny a Section 440.10 motion without a hearing when the defendant's self-serving claims are contradicted by the record or lack other supporting evidence.

People v. Dorvil · filed 2025-01-16

Turning first to the denial of his CPL 440.10 motion without a hearing, "a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief. Furthermore, a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ( People v Johnson , 221 AD3d 1172, 1175-1176 [3d Dept 2023], lv denied 41 NY3d 965 [2024] [internal quotation marks [*11]and citations omitted]).

A court may deny a CPL 440.10 ineffective assistance claim without a hearing when the defendant's affidavit is unsupported and the record provides no evidence casting doubt on counsel's effectiveness.

People v. Darby · filed 2025-02-27

"Given defendant's unsupported self-serving affidavit, the favorable plea agreement and lack of evidence in the record that casts doubt on counsel's apparent ineffectiveness[*4], we find no abuse of discretion in [Supreme] Court's denial of defendant's motion to vacate the judgment without a hearing" as to his CPL 440.10 claim of ineffective assistance of counsel ( People v Guilianelle , 233 AD3d 1179, 1181 [3d Dept 2024] [citations omitted]; see People v Bailey , 232 AD3d 1031, 1038 [3d Dept 2024]).

Section 440.10 permits a court to deny a motion to vacate without a hearing when the alleged nonrecord facts would not entitle the defendant to relief or the claims are unsupported by evidence.

People v. Sturgill · filed 2025-03-06

"To demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief, and a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ( People v Brown , 220 AD3d 1015, 1016 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1091 [2024]). ... Under these circumstances, County Court did not abuse its discretion in denying defendant's CPL 440.10 motion without a hearing ( see People v Brown , 220 AD3d at 1017; People v Spradlin , 192 AD3d at 1274).

Section 440.10 requires a hearing only when the submissions identify material nonrecord facts that would entitle the defendant to relief.

People v. Burtner · filed 2025-03-13

[O]n a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief.

Section 440.10(1)(g) provides a forum for considering new evidence outside the trial record after conviction.

People v. Del Rosario-Martinez (Ronny) · filed 2026-03-03(1)(g)

A CPL 440.10 proceeding is the appropriate forum for considering such material with respect to the subject judgment of conviction ( see CPL 440.10 [1] [g]).

A defendant seeking to vacate a conviction based on a witness’s recantation must provide substantial evidence that the witness’s earlier statements were false.

People v. Avery · filed 2011-01-20

Upon his CPL 440.10 motion, defendant argued that his conviction should be vacated because of newly-discovered evidence in the form of alleged recantations by Clark and the upstairs apartment resident, and because of ineffective assistance of counsel at trial. ... It was defendant’s burden to overcome the presumption of regularity attached to the prior judicial proceedings with substantial evidence establishing that Clark’s previous statements were false (see People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]).

Section 440.10(1)(g) permits a new trial when evidence could not have been produced at trial with due diligence and probably would have led to a more favorable verdict.

People v. Maynard · filed 1974-03-29(1)(g)

The present statute, GPL 440.10 (subd. 1, par. [g]), substantially identical to subdivision 7 of section 465 of the former Code of Criminal Procedure, provides a judgment of conviction may be vacated where new evidence has been discovered which could not have been produced by the defendant at the trial even with due diligence on his part, and which is of such a character as to create a probability that, had such evidence been received at trial, the verdict would have been more favorable to the defendant. ... The motions for a new trial pursuant to CPL 440.10 (subd. 1, par. [g]) and CPL 440.10 (subd. 1, par. [h]) are granted.

Section 440.10(1)(g) does not permit a newly discovered evidence motion after a guilty plea because it requires a guilty verdict after trial.

People v. Sherman · filed 1975-09-16(1)(g)

There was no verdict after trial here. The defendant pleaded guilty before trial. Thus, on its face, defendant’s pleading requires a denial of this motion.

Section 440.10(1)(g) sets no fixed time limit for a motion based on newly discovered evidence, but requires the motion to be made with due diligence after discovery.

People v. Crimmins · filed 1975-12-22(1)(g)

Unlike a post-conviction application for a new trial under the code, which had to be made within one year after judgment, no time limitation is prescribed for a motion to vacate judgment under CPL 440.10 (subd 1, par [g]) (compare former Code Crim Pro, §466).

Section 440.10(1)(g) permits vacatur for newly discovered evidence that could not have been produced at trial with due diligence and probably would have led to a more favorable verdict.

People v. Wagner · filed 1976-02-19(1)(g)

The statute (CPL 440.10, subd 1, par [g]) provides that a judgment of conviction may be vacated where new evidence has been discovered which could not have been produced by the defendant at the trial even with due diligence on his part, which is of such a character as to create a probability that, had such evidence been received at the trial, the verdict would have been more favorable to the defendant. ... It is clear, therefore, that the evidence alleged to be newly discovered, was neither unknown to the defendant at the time of the trial, nor can it be said to be exculpatory of guilt on the part of the defendant.

Section 440.10(1)(g) allows a hearing on a motion to vacate a judgment based on newly available testimony from a codefendant.

People v. Pollock · filed 1979-01-04(1)(g)

However, the defendants rely on Reyes’ testimony at his own trial and his now willingness to testify at a retrial of the defendants on their motion to vacate the judgment pursuant to CPL 440.10 (subd 1, par [g]). We believe that a hearing should be held with respect thereto, and we remand for that purpose.

At a § 440.10(1)(g) hearing on newly discovered evidence, the court need not decide which of a witness’s conflicting accounts is true; credibility is for the jury on retrial.

De Canzio v. Kennedy · filed 1979-04-06(1)(g)

Judge Celli was not required to decide whether Monachino’s first account of the murder or his second was the truthful version. The credibility of a witness and whether his trial testimony is to be believed was not a matter for the hearing court but is for the jury on retrial (see People v Rensing, 14 NY2d 210).

Section 440.10(1)(g) requires newly discovered evidence to be likely to produce a more favorable verdict; evidence cumulative of what the jury already considered does not qualify.

People v. Powell · filed 1980-01-15(1)(g)

The pivotal issue before this court concerns whether the alleged evidence, submitted by the defendant as part of her motion under CPL 440.10 (subd 1, par [g]), is newly discovered evidence as that term is defined by the New York courts in interpreting the statutory authorization of article 440. ... The rule of newly discovered evidence sets the strict criteria that new evidence must be of such character as to create the probability it would have resulted in a more favorable verdict.

Section 440.10(1)(g) requires due diligence in discovering and presenting new evidence offered to vacate a conviction.

People v. Bridget · filed 1980-03-17(1)(g)

The story concocted by Johnson and Bridget transcends belief and even if we were inclined to give credence to Johnson’s testimony, the fact that his testimony, if believed, was available to defendant on the very night of the murder shows a definite lack of due diligence in bringing the issue to the attention of the police authorities. We hold that the defendant has not borne his burden. Accordingly, we reverse, deny the motion and reinstate the judgment of conviction.

Section 440.10(1)(g) permits a trial court to grant a new trial for newly discovered evidence in its discretion when the statutory requirements are satisfied.

Trippe v. Calavito · filed 1981-04-03(1)(g)

It is well settled under New York law that the power to grant an order for a new trial, based upon newly discovered evidence, is purely statutory and may be exercised in the discretion of the trial court when the requirements of CPL § 440.10 have been satisfied.