PEOPLE v. MACKLIN (2001)

Order, Supreme Court, Bronx County (Dominic Massaro, J.), entered April 20, 1999, which denied defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court and Justice, rendered March 13, 1997, convicting defendant, after a jury trial, of two counts of rape in the first degree, and sentencing him to concurrent terms of 8 to 16 years, unanimously affirmed.

While we agree with defendant that his motion contained non-record factual allegations that could not have been made on direct appeal, we find that the motion was properly denied.   Defendant's allegations, some of which were made solely by defendant, were contradicted by his counsel, and which, we find, could not possibly be true (see, CPL 440.30[4][d] ), do not establish ineffective assistance of trial counsel (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).   In particular, we note that, even if true, the affidavits of defendant's mother and brother that defendant was not in the apartment in question between 3:00 and 5:00 A.M. on the night of the incident, after which time they were asleep, and that they informed counsel that they would testify to this fact, were largely irrelevant, since the trial testimony showed that defendant and the complainant could have arrived in the apartment after these relatives retired and without their knowledge.