People v. Herrera

• Decision Date: 25 October 1993
• Citation: 197 A.D.2d 706,602 N.Y.S.2d 926
• Parties: The PEOPLE, etc., Respondent, v. William HERRERA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 926

602 N.Y.S.2d 926

197 A.D.2d 706

The PEOPLE, etc., Respondent, v. William HERRERA, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 25, 1993.

Philip L. Weinstein, New York City (Carrie Lamitie, of counsel), for appellant.

William L. Murphy, Dist. Atty., Staten Island (Karen F. McGee and Jonathan J. Silbermann, of counsel), for respondent.

Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant (1) from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered June 18, 1987, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (2 counts) and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court, dated July 16, 1992, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and order are affirmed.

The defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, contending that he was deprived of effective assistance of counsel due to defense counsel's failure to discuss the prosecutor's plea offer with him, a conflict of interest, counsel's drug addiction, and his sleeping during trial. On appeal, the defendant contends that the Supreme Court erred in denying his motion pursuant to CPL 440.10 without a hearing. We disagree.

A court may deny a motion pursuant to CPL article 440 without a hearing if it appears that the moving papers do not allege any ground constituting a legal basis for the motion (see, CPL 440.30[4][a], People v. Elliott, 187 A.D.2d 666, 590 N.Y.S.2d 257). In the instant case, a hearing was unnecessary since the facts set forth in the defendant's motion papers which do not appear in the record on direct appeal, even if true, would not entitle the defendant to a vacatur of the judgment of conviction (see, People v. Ferreras, 70 N.Y.2d 630, 518 N.Y.S.2d 780, 512 N.E.2d 301; People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Liggins, 181 A.D.2d 916, 582 N.Y.S.2d 211).

Specifically, defense counsel's failure to discuss the prosecution's plea offer with the defendant did not render his representation ineffective since the defendant's original trial counsel had advised the defendant with respect to the plea offer and the defendant had rejected the offer (cf., People v. Reed, 152 A.D.2d 481, 543 N.Y.S.2d 677). Moreover, the motion papers only set forth conclusory and unsubstantiated allegations that defense counsel was operating under a conflict of interest due to his alleged drug addiction during trial (see, People v. Pachay, 185 A.D.2d 287, 587 N.Y.S.2d 212). Finally, since counsel's alleged drug addiction and sleeping during trial are...