Denial Of 440 Motion: Where There Are No Sworn Allegations To Support Material Facts, The Trial Court May Deny The Motion Without A Hearing.
Denial Of 440 Motion: Where There Are No Sworn Allegations To Support Material Facts, The Trial Court May Deny The Motion Without A Hearing. ?
People v Wright
New York Court of Appeals
2016 NY Slip Op 04440
Decided on: June 9, 2016
Issue: Whether the trial court committed an abuse of discretion when it denied a 440 motion without a hearing where defendant failed to include sworn allegations to support material facts.
Holding: The Court of Appeals held that the courts below were within their discretion to summarily deny the motion because defendant’s papers failed to include sworn allegations to support material facts to substantiate the allegations that there was an actual conflict of interest or that any potential conflict operated on the defense.
Facts: Defendant made a motion to vacate his judgment of conviction pursuant to CPL 440.10 based on an alleged conflict of interest, asserting that his attorney, Long, had simultaneously represented Albany County District Attorney, P. David Soares. Defendant maintained that evidence of the alleged conflict was newly discovered, and that his conviction was obtained in violation of his right to counsel and that it was based on misrepresentation or fraud on the part of the prosecutor.
Defendant contends that Long had represented Soares four months before Long was retained by defendant by writing a letter in connection with Soares reelection campaign. In support, defendant attached an October 18, 2008 article from the Albany Times Union, which stated that Long, who represented the campaign, had sent a letter to the Board of Elections asking to examine the machine ballots prior to the general election. Defendant next alleged that, in 2011-2012, Long was counsel of record for Soares in a disciplinary proceeding and in Soares’ divorce action. Based on these allegations, defendant maintained that the attorney-client relationship between Soares and Long was continuous and had lasted throughout the duration of defendant’s criminal action.
Legal Analysis: 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, CPL 440.30  [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  [a]. The People “may” file an answer denying or admitting any or all of the allegations, CPL 440.30  [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  [b].
The Court of Appeals held that they review the denial of a CPL 440 motion under an abuse of discretion standard. ?A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty, People v Ortiz, 76 NY2d 652, 656 (1990). We have distinguished between actual and potential conflicts of interest, observing that reversal of a defendant’s conviction would be required where there is even a significant possibility of an actual conflict, People v Solomon, 20 NY3d 91, 95-96 (2012).
Here, defendant’s actual conflict claim consists of unsubstantiated and conclusory allegations of simultaneous representation. He relies on a letter Long wrote on behalf of Soares’ campaign four months before Long first represented defendant, and Long’s representation of Soares on various personal matters years after Long’s representation of defendant had ceased. Beyond mere supposition, there is no factual support for the conclusion that Long’s representation of Soares’ re-election campaign in 2008 continued beyond its apparent scope, or that it overlapped with his 2009 representation of defendant.
Under CPL 440.30 (4) (b), based on this failure to provide sworn allegations substantiating or tending to substantiate the essential facts, County Court was within its province to deny the motion without a hearing (compare CPL 710.60  [b];?People v Mendoza, 82 NY2d 415 (1993). Defendant argues that evidence of the existence of the conflict would most likely be out of his reach, People v Shinkle, 51 NY2d 417, 420-421 (1980). This claim is without merit in these circumstances. Defendant admittedly never attempted to obtain the necessary information from his own attorney (Long). Whatever the strategy of omission, the Court held that they simply do not know whether Long’s answer would have aided defendant’s claim.
The failure to include an affirmation from counsel or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant’s postconviction motion, People v Morales, 58 NY2d 1008, 1009 (1983);?People v Scott, 10 NY2d 380, 381-382 (1961). Of course, if defendant either obtains the requisite information from Long or Long proves uncooperative, he is permitted by statute to bring a subsequent CPL 440 motion, People v Session, 34 NY2d 254, 256 (1974).