You are here: / / MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT...
, ,

MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined defendant's motion to set aside his conviction was properly denied without a hearing. Defendant's allegations of defense counsel's conflict of interest were deemed insufficient. Defendant alleged his lawyer represented both him and the District Attorney simultaneously:

CPL 440.30 requires that, where the motion to vacate a judgment of conviction “is based upon the existence or occurrence of facts,” sworn allegations thereof must be included in the motion papers (see CPL 440.30 [1] [a]). The sworn allegations can be based on personal knowledge or on information and belief, but in support of the latter, “the affiant must state the sources of such information and the grounds of such belief” (CPL 440.30 [1] [a]). The People “may” file an answer “denying or admitting any or all of the allegations” (see CPL 440.30 [1] [a]). The statute permits a court to deny the motion without a hearing in certain circumstances, including if it “is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts” (CPL 440.30 [4] [b]). * * *

Here, defendant's actual conflict claim consists of unsubstantiated and conclusory allegations of simultaneous representation. * * *

… [T]he statute is plain that the initial failure by a defendant to carry his or her burden of coming forward with sworn allegations substantiating the essential facts in the 440 motion does not shift the burden to the People in their responsive pleadings. * * *

To the extent defendant's allegations are sufficient to establish a potential conflict — based on the successive representation — his papers do not attempt to demonstrate that such a conflict operated on the defense. People v Wright, 2016 NY Slip Op 04440, CtApp 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)

You might also like
Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison
Local Law, Which Regulates the Conduct of Attorneys Who Regularly Engage in (Nonlegal) Activities Traditionally Performed by Debt Collectors, Not Preempted by the Judiciary Law
THE FOIL PERSONAL PRIVACY EXEMPTION DOES NOT PROVIDE A BLANKET EXEMPTION FOR CIVILIAN COMPLAINTS AGAINST POLICE OFFICERS, INCLUDING UNSUBSTANTIATED COMPLAINTS; WHETHER SUCH A DOCUMENT SHOULD BE REDACTED OR WITHHELD MUST BE DETERMINED DOCUMENT-BY-DOCUMENT (CT APP).
CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP).
RELATED PUBLIC AUTHORITIES PROPERLY REQUIRED TO FILE SEPARATE REPORTS WITH THE NYS AUTHORITIES BUDGET OFFICE (CT APP).
Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely
THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).
THE POLICE MAY STOP A VEHICLE IN THE EXERCISE OF THE “COMMUNITY CARETAKING” FUNCTION IF THERE IS CAUSE TO BELIEVE SOMEONE IN THE VEHICLE NEEDS ASSISTANCE; THE QUICK OPENING AND CLOSING OF A PASSENGER DOOR WAS NOT ENOUGH (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

APPELLATE DIVISION WRONGLY EXTENDED COMMON INTEREST ATTORNEY CLIENT PRIVILEGE... EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMI...