Opinion
No. 68 SSM 14
09-14-2021
The PEOPLE of the State of New York, Respondent, v. Kevin DOGAN, Appellant.
David C. Schopp, Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), for appellant. John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
David C. Schopp, Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), for appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
We review the summary denial of a CPL article 440 motion under an abuse of discretion standard (see
People v. Wright, 27 N.Y.3d 516, 520, 35 N.Y.S.3d 286, 54 N.E.3d 1157 [2016] ). It is well settled that a court may deny a CPL 440.10 motion without conducting a hearing if "[t]he motion 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, County Court did not abuse its discretion in denying defendant's CPL 440.10 motion without a hearing because, under the circumstances presented, defendant failed to sufficiently allege " ‘a reasonable probability that, but for counsel's [alleged] errors, he would not have pleaded guilty and would have insisted on going to trial’ " ( People v. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ). Moreover, defendant failed to otherwise "show that the nonrecord facts sought to be established ... would entitle him to relief" ( People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). Accordingly, County Court did not abuse its discretion in determining that defendant was not entitled to a hearing.
Chief Judge DiFiore and Judges Rivera, Fahey, Garcia, Wilson, Singas and Cannataro concur.
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum.