PEOPLE v. VIGLIOTTI (2005)

County Court did not err in denying without a hearing the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ).   Subsequent to defendant's conviction and original motion pursuant to CPL 440.10, defense counsel was suspended from the practice of law based upon his conviction in federal court of filing a false document (Matter of Piemonte, 287 A.D.2d 117, 732 N.Y.S.2d 796).   We confirmed the findings of fact made by the Referee, “including the finding in mitigation that the addiction of [the attorney] to alcohol and cocaine affected his judgment” (id. at 118, 732 N.Y.S.2d 796).   In his present motion pursuant to CPL 440.10, defendant contended, inter alia, that he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant.   Defendant, however, failed to allege any facts linking the problems of defense counsel to his representation of defendant.   Because the motion papers “do not contain sworn allegations substantiating or tending to substantiate” defendant's claims of ineffective assistance of counsel, we conclude that the court properly denied that part of the motion without a hearing (CPL 440.30[4][b] ).  Defendant's remaining contentions are unavailing inasmuch as they relate to matters that could have been raised on direct appeal or in the prior CPL 440.10 motion (see CPL 440.10[2][c];  [3][c];  440.30 [2];  People v. De Oliveira, 223 A.D.2d 766, 769, 636 N.Y.S.2d 441, lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: