You are here: / / DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE...
,

DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED WITHOUT A HEARING; THE TWO DISSENTERS ARGUED THE PRO SE MOTION WAS SUFFICIENT TO WARRANT A HEARING, DESPITE THE TECHNICAL DEFECTS (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant’s pro se motion to vacate his conviction by guilty plea, on ineffective assistance of counsel grounds, was properly denied without a hearing. The dissenters argued defendant raised the issue sufficiently to warrant a hearing:

Defendant contends that defense counsel was ineffective because he failed to advise defendant, prior to the guilty plea, of a potentially viable affirmative defense concerning the operability of the firearm used in the robberies … . Defendant did not submit, however, the statutorily-required “sworn allegations” of “the existence or occurrence of facts” in support of his motion to warrant such a hearing … . The rule that a CPL 440.10 motion must be predicated on sworn allegations is a fundamental statutory requirement that a defendant must satisfy to be entitled to a hearing … . Absent sworn allegations substantiating defendant’s contentions, the court did not abuse its discretion in summarily denying the motion … .

Specifically, defendant did not aver in his initial motion papers that he would have rejected the favorable plea deal and insisted on proceeding to trial had he been made aware of the potentially viable affirmative defense. Inasmuch as defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”  … , his failure to swear that he would have done so is fatal to his motion, and thus the court did not err in denying it without a hearing … . People v Dogan, 2020 NY Slip Op 02021, Fourth Dept 3-20-20

 

You might also like
OFFICE OF MEDICAID INSPECTOR GENERAL COULD NOT SEEK REIMBURSEMENT OF OVERPAYMENTS IN AN AMOUNT HIGHER THAN SPECIFICALLY INDICATED IN ITS WRITTEN NOTICE.
Where Equitable Relief Described in “Sole Remedy Clause” is Impossible, Monetary Damages Are Available
THE STATUTORY CRITERIA FOR A MOTION TO CHANGE VENUE IN CPLR 510(3) WERE NOT MET; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
THE CASE INVOLVES A NEW JERSEY INSURANCE POLICY ISSUED TO A NEW JERSEY COMPANY WHICH WAS DOING SUBWAY WORK IN NEW YORK, PURSUANT TO A 2017 COURT OF APPEALS RULING, WHETHER NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER STATUTE APPLIES DEPENDS ON WHETHER THE INSURED HAS A SUBSTANTIAL BUSINESS PRESENCE IN NEW YORK, MATTER REMITTED FOR DEVELOPMENT OF THE RECORD ON THAT ISSUE (FIRST DEPT).
PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (ESPINAL FACTORS) (FIRST DEPT).
UNDER OHIO LAW, CLAIMS ASSERTED IN DEMAND FOR ARBITRATION FELL WITHIN THE SCOPE OF EXCLUSIONS FOR KNOWLEDGE OF FALSITY OF STATEMENTS BY THE INSURED AND BREACH OF CONTRACT BY THE INSURED.
Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment—Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers
LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

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

BECAUSE DEFENDANT INVOKED HIS RIGHT TO COUNSEL WHEN HE WAS NOT IN CUSTODY HE... NEW YORK PLAINTIFF, NORTH CAROLINA DEFENDANT, TORTS ALLEGEDLY OCCURRED IN GEORGIA;...