Opinion
No. 464 KA 05-00403.
April 20, 2007.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Erie County Court (Michael L. D'Amico, J.), entered February 1, 2005. The order denied the motion of defendant pursuant to CPL 440.10 (1) (h) to vacate the judgment convicting him of, inter alia, attempted murder in the first degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
Present — Gorski, J.P., Martoche, Centra, Lunn and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10 (1) (h) to vacate the judgment convicting him of, inter alia, two counts of attempted murder in the first degree ( People v DeJesus, 236 AD2d 791, lv denied 89 NY2d 1091, 91 NY2d 872 [1997]). Contrary to defendant's contention, County Court properly denied the motion without a hearing. Defendant contended in support of the motion that he was denied effective assistance of counsel but his submissions, which do not include an affidavit from trial counsel, are insufficient to warrant a hearing with respect to his allegation that trial counsel was ineffective in failing to advise him during plea negotiations of his possible sentencing exposure upon conviction after trial ( see generally People v Rosario, 309 AD2d 537, 538, lv denied 1 NY3d 579 [2003]; People v Stewart, 295 AD2d 249, 249-250, lv denied 99 NY2d 540, cert denied 538 US 1003; cf. People v Reynolds, 309 AD2d 976; People v Perron, 273 AD2d 549, 550).