Opinion
2018–04878 Ind.No. 31/07
11-20-2019
The PEOPLE, etc., respondent, v. Andre CLEMMONS, appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant, by permission, from an order of the County Court, Dutchess County (Peter M. Forman, J.), dated March 6, 2018, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Gerald V. Hayes, J.), rendered March 17, 2008, convicting him of murder in the second degree, attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and manslaughter in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed. We agree with the County Court's determination to deny, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate his judgment of conviction (see generally People v. Vasquez, 134 A.D.3d 742, 21 N.Y.S.3d 297 ). "In moving to vacate a judgment of conviction, a defendant must ‘come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction.’ " ( People v. Campbell, 148 A.D.3d 821, 822, 48 N.Y.S.3d 719, quoting People v. Waymon, 65 A.D.3d 708, 709, 883 N.Y.S.2d 911 ; see CPL 440.10 ). "Mere conclusory allegations of ultimate facts are insufficient to warrant a hearing" ( People v. Waymon, 65 A.D.3d at 709, 883 N.Y.S.2d 911 ). Here, the defendant's contention that his conviction was procured by fraud and misrepresentation on the part of the prosecutor was based upon unsubstantiated and conclusory allegations. Furthermore, to the extent that the defendant contends that alleged new evidence exists which warrants vacatur of his conviction, he failed to demonstrate that his motion was made with due diligence following the discovery of the purportedly new evidence (see CPL 440.10[1][g] ; People v. Kandekore, 300 A.D.2d 318, 750 N.Y.S.2d 776 ; People v. Stuart, 123 A.D.2d 46, 509 N.Y.S.2d 824 ).
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.