People v. Annis

Decision Date23 December 2015
Citation21 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.
CourtNew 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.


21 N.Y.S.3d 795

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:

134 A.D.3d 1433

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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3 cases
  • People v. Vasquez
    • United States
    • New York Supreme Court Appellate Division
    • December 23, 2015
    ...fair trial (see People v. Rivera, 281 A.D.2d 927, 928, 723 N.Y.S.2d 775, lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92 ; cf. 21 N.Y.S.3d 795Pagan, 2 A.D.3d at 880–881, 769 N.Y.S.2d 741 ; Rivera, 116 A.D.2d at 373–376, 501 N.Y.S.2d 817 ; see generally People v. Rubin, 101 A.D.2d ......
  • People v. Callahan
    • United States
    • New York Supreme Court Appellate Division
    • December 23, 2015
    ...Although Parker concerned a defendant's failure to appear at trial, the same precepts apply to violation of probation proceedings 134 A.D.3d 1433(see e.g. People v. Severino, 44 A.D.3d 1077, 1079, 844 N.Y.S.2d 391, lv. denied22 N.Y.S.3d 7289 N.Y.3d 1038, 852 N.Y.S.2d 24, 881 N.E.2d 1211 ; P......
  • People v. Pepe, 643
    • United States
    • New York Supreme Court Appellate Division
    • June 8, 2018
    ...ineffective assistance of counsel is raised for the first time on appeal and thus is not properly before us (see People v. Annis, 134 A.D.3d 1433, 1434, 21 N.Y.S.3d 795 [4th Dept. 2015] ; People v. Glover, 117 A.D.3d 1477, 1478, 984 N.Y.S.2d 726 [4th Dept. 2014], lv denied 23 N.Y.3d 1036, 9......

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