People v. Annis
Decision Date | 23 December 2015 |
Citation | 21 N.Y.S.3d 795,134 A.D.3d 1433 |
Parties | The PEOPLE of the State of New York, Respondent, v. Christopher ANNIS, Defendant–Appellant. |
Court | New York Supreme Court — Appellate Division |
134 A.D.3d 1433
21 N.Y.S.3d 795
The PEOPLE of the State of New York, Respondent,
v.
Christopher ANNIS, Defendant–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
Dec. 23, 2015.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Defendant–Appellant.
Eric R. Schiener, Special Prosecutor, Geneseo, for Respondent.
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from an order denying, without a hearing, his CPL 440.10 motion to vacate a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i] ). We previously affirmed the judgment of conviction (People v. Annis, 126 A.D.3d 1525, 6 N.Y.S.3d 363 ). With respect to defendant's contention concerning an alleged improper communication between an assistant district attorney and a sworn juror, we conclude that County Court properly denied the motion without a hearing
inasmuch as the motion papers "do not contain sworn allegations substantiating or tending to substantiate all the essential facts" of defendant's claim (CPL 440.30[4] [b] ; see People v. Howington, 122 A.D.3d 1289, 1289–1290, 996 N.Y.S.2d 436, lv. denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 ). With respect to defendant's contentions that he was denied a fair
trial by prosecutorial misconduct and that the court erred in excluding photographs of the vehicle, we conclude that the court properly denied the motion without a hearing inasmuch as "sufficient facts appear[ed] on the record with respect to [those contentions] to permit adequate review thereof upon" a direct appeal (CPL 440.10[2][b] ; see People v. Rossborough, 122 A.D.3d 1244, 1246, 996 N.Y.S.2d 407 ) and, indeed, defendant's direct appeal from the judgment was pending.
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