No doubt recognizing that obtaining such an affidavit may prove difficult, the New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable. That is the specific holding of People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983), the New York Court of Appeals decision that Jenkins maintains created the affidavit requirement: Because defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant's failure to appeal the coram nobis Judge erred in denying the application without a hearing.

See: CPL § 440.30[4][b]; People v. Morales, 58 NY2d 1008 (1983), citing, People v. Scott, 10 NY2d 380 (1961)(failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct); People v. Stewart, 295 AD2d 249, 250 (1st Dept. 2002) [summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"]; People v. Ozuna, 7 NY3d 913, 915 (2006)(defendant "neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do). Certain courts have held that the absence of an affidavit from prior counsel, by itself, should not warrant summary denial of a motion to vacate a prior plea. See: People v. Brito, 47 Misc 3d 1206 (Sup. Ct., Bronx County, 2015), citing, People v. Morales, 58 NY2d 1008 (1983); People v. Radc

The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL 440.30[4][b], [d] ). Specifically, the People argue defendant's failure to provide an affidavit from Mr. Watts counsel warrants summary denial of defendant's motion because absent any other evidence that counsel failed to investigate and advance an alibi defense, he is unable to “substantiate all the essential facts” (see CPL § 440.30[4][b] ; see People v. Morales, 58 N.Y.2d 1008 [1983], citing People v. Scott, 10 N.Y.2d 380 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v. Johnson, 292 A.D.2d 284 [1st Dept 2002] [court denied defendant's motion to vacate his judgment of conviction alleging ineffective assistance of counsel based on defendant's failure to obtain an affidavit from trial counsel or his efforts to obtain one]; People v. Gil, 285 A.D.2d 7 [1st Dept 2001] [defendant must provide an “affidavit from trial counsel explaining his or her trial tactics” or an explanation to obtain an affidavit from trial counsel or his efforts to obtain one] ). The People are correct.

Generally, where the defendant's moving papers allege an ineffective assistance of counsel, but fail to provide an affidavit from the defendant's former counsel, the motion must be summarily denied, because absent any other evidence that defense counsel failed to inform him of the potential impact or consequences of his plea, he is unable to “substantiate all the essential facts”. See: CPL § 440.30[4][b] ; People v. Morales, 58 N.Y.2d 1008 (1983), citing, People v. Scott, 10 N.Y.2d 380 (1961) (failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct); People v. Stewart, 295 A.D.2d 249, 250 (1st Dept.2002) [summary denial was appropriate where “defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation”]; People v. Ozuna, 7 NY3d 913, 915 (2006) (defendant “neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do).Certain courts have held that the absence of an affidavit from prior counsel, by itself, should not warrant summary denial of a motion to vacate a prior plea. See:People v. Brito, 47 Misc.3d 1206 (Sup.Ct., Bronx County, 2015), citing, People v. Morales, 58 N.Y.2d 1008 (1983) ; People v. R

tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]). The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL § 440.30 [4] [b], [d]). Indeed, the defendant neglected to provide an affidavit from his alleged ineffective attorneys. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential deportation consequences, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v Stewart, 295 AD2d 249, 250 [1st Dept 2002] [summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"]; see People v Ozuna, 7 NY3d 913, 915 [2006] [defendant "neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do]). The absence of an attorney's affidavit, however, by itself, is not dispositive (see Morales, 58 NY2d 1008).

tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]). The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL § 440.30 [4] [b], [d]). Indeed, the defendant neglected to provide an affidavit from his alleged ineffective attorneys. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential deportation consequences, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v Stewart, 295 AD2d 249, 250 [1st Dept 2002] [summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"]; see People v Ozuna, 7 NY3d 913, 915 [2006] [defendant "neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do]). The absence of an attorney's affidavit, however, by itself, is not dispositive (see Morales, 58 NY2d 1008).

g or tending to substantiate them (see CPL § 440.30 [4 ][b] ); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30[4][d][i], [ii] ).The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL § 440.30[4][b], [d] ). Indeed, the defendant neglected to provide an affidavit from his alleged ineffective attorneys. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential deportation consequences, he is unable to “substantiate all the essential facts” (see CPL § 440.30[4][b] ; People v. Morales, 58 N.Y.2d 1008 [1983], citing People v. Scott, 10 N.Y.2d 380 [1961] [failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v. Stewart, 295 A.D.2d 249, 250 [1st Dept 2002] [summary denial was appropriate where “defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation”]; see People v. Ozuna, 7 NY3d 913, 915 [2006] [defendant “neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do] ).The absence of an attorney's affidavit, however, by itself, is not dispositive (see Morales, 58 N.Y.2d 1008 ).

Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential increased future sentencing consequences, he is unable to “substantiate all the essential facts” (see CPL § 440.30[4][b]; see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983], citing People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct] ). The absence of an attorney's affidavit, however, by itself, is not dispositive ( see Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983] ).

"New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable." Id.; see People v. Morales, 58 N.Y.2d 1008, 1009 (1983) ("Because defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant's failure to appeal the coram nobis Judge erred in denying the application without a hearing."). Some New York courts have even held that a defendant is not required to submit an affidavit from trial counsel or offer an explanation in circumstances where the defendant's claim is hostile to the trial attorney.

The prosecution further argued that, in light of Jackson's failure to present an affidavit from trial counsel explaining his defense of the case, the motion should be denied without a hearing. Id. at 2-3, ¶ 5 (citing, inter alia, People v. Morales, 58 N.Y.2d 1008, 1009 (N.Y. 1983)). Finally, the prosecution argued that, in any event, trial counsel's conduct, viewed either with respect to specific alleged errors or as a whole, did not rise to the level of egregious or prejudicial conduct necessary to prevail on an ineffective assistance of counsel claim. Id. at 3, ¶ 6 (citing People v. Flores, 84 N.Y.2d 184, 187-88 (N.Y. 1994)).