People v. Canty

• Decision Date: 26 September 2006
• Docket Number: 2004-08556.
• Citation: 820 N.Y.S.2d 896,32 A.D.3d 1043,2006 NY Slip Op 06867
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MOSHE CANTY, Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 1043

820 N.Y.S.2d 896

2006 NY Slip Op 06867

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MOSHE CANTY, Appellant.

2004-08556.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 26, 2006.

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Douglass, J.), entered September 27, 2004, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered November 18, 1999, convicting him of attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, 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 a hearing would establish material nonrecord facts that would entitle him to relief (see People v Satterfield, supra; People v Demetsenare, supra). The defendant made no showing that his trial counsel's failure to contact additional alibi witnesses prejudiced his case and deprived him of meaningful representation (see People v Benevento, 91 NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). At trial, defense counsel presented an alibi defense and made forceful arguments that the defendant had been misidentified. Counsel made various pretrial motions, vigorously cross-examined the People's witnesses, and gave a cogent summation highlighting potential infirmities in the People's evidence (see People v Taylor, 1 NY3d 174, 177 [2003]; People v Ryan, 90 NY2d 822, 823 [1997]; People v Cabezudo, 303 AD2d 596 [2003]; People v McDonald, 255 AD2d 688 [1998]). Under these circumstances, counsel's alleged errors, as raised by the defendant in his moving papers, were insufficient to constitute a deprivation of meaningful representation (see Strickland v Washington, 466 US 668 [1984]; People v Baldi, supra).

Florio, J.P., Ritter, Goldstein and Lifson, JJ., concur.