Opinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Bangaly CHELLEY, also known as Denis Chelley, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., LINDLEY, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from an order summarily denying his motion pursuant to CPL 440.10 to vacate the judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ), contending that he was entitled to a hearing on his claim that he was deprived of effective assistance of counsel at trial. In denying the motion, Supreme Court properly concluded that most of defendant's challenges to his attorney's performance are based on matters in the record that were, or could have been, raised on defendant's direct appeal. Defendant was therefore not entitled to a hearing on those allegations of ineffective assistance of counsel (see CPL 440.10[2][a], [c] ; People v. Vigliotti, 24 A.D.3d 1216, 1216–1217, 806 N.Y.S.2d 841 ).
With respect to the alleged instance of ineffective assistance of counsel based on matters outside the record, defendant contends that his attorney was ineffective because he failed to call one of the witnesses listed on defendant's alibi notice. In support of his motion, however, defendant "neither submitted an affidavit from [the witness] to show that [s]he would have corroborated [defendant's alibi], nor explained his failure to do so" (People v. Ozuna, 7 N.Y.3d 913, 915, 828 N.Y.S.2d 275, 861 N.E.2d 90 ; see generally People v. Ford, 46 N.Y.2d 1021, 1023, 416 N.Y.S.2d 536, 389 N.E.2d 1058 ). In addition, the record establishes that defense counsel called the other two witnesses listed on the alibi notice, and there is no indication that the testimony of the uncalled witness would have been anything but cumulative (see People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506 ). Under the circumstances, defendant failed to demonstrate " ‘the absence of strategic or other legitimate explanations' " for defense counsel's failure to call the witness (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). In sum, "[c]onsidering all of the circumstances, including that defendant's motion was decided by a [justice] who, having presided over defendant's trial, was familiar with the facts ..., we cannot conclude that [Supreme] Court abused its discretion in denying the motion without a hearing" (People v. Hoffler, 74 A.D.3d 1632, 1635, 906 N.Y.S.2d 115, lv. denied 17 N.Y.3d 859, 932 N.Y.S.2d 25, 956 N.E.2d 806 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.