PEOPLE v. JON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Raymon JON, Defendant-Appellant.

Decided: February 16, 2006

TOM, J.P., FRIEDMAN, GONZALEZ, SWEENY, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Sheilah Fernandez of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jill Graziano of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered March 17, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 1 1/212 to 4 1/212 years, and order, same court and Justice, entered on or about July 8, 2003, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).

The court properly exercised its discretion in denying defendant's CPL 440.10 motion without a hearing (see CPL 440.30[4][a], [b] ).  Although defendant claimed that his trial attorney rendered ineffective assistance by failing to call a particular witness, defendant's moving papers gave no indication of the substance of the potential witness's testimony (see People v. Session, 34 N.Y.2d 254, 357 N.Y.S.2d 409, 313 N.E.2d 728 [1974] ).