Opinion
2012-04-10
The PEOPLE, etc., respondent, v. Robert MIMS, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Chun, J.), entered April 30, 2009, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court dated June 2, 2004, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
The Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate his conviction.*857 Apart from his own self-serving assertions, he failed to provide any nonhearsay evidence to contradict the record, which indicates that he received the effective assistance of counsel with respect to the People's plea offers ( see CPL 440.30[4][d]; People v. Fernandez, 5 N.Y.3d 813, 803 N.Y.S.2d 22, 836 N.E.2d 1144; People v. Lane, 83 A.D.3d 1118, 1119, 921 N.Y.S.2d 343; People v. Rogers, 8 A.D.3d 888, 890–891, 780 N.Y.S.2d 393). In addition, the record does not indicate that the defendant was not present at the proceeding at which the People's plea offers were communicated to his trial counsel, and he failed to submit substantial evidence sufficient to overcome the presumption of regularity that attaches to trial proceedings in support of his claim that his right to be present at the proceeding was violated ( see People v. Andrew, 1 N.Y.3d 546, 547, 772 N.Y.S.2d 235, 804 N.E.2d 399; People v. Velasquez, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376; People v. Bogan, 78 A.D.3d 855, 856, 911 N.Y.S.2d 166; People v. Talbert, 303 A.D.2d 696, 756 N.Y.S.2d 782).