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 ).

A defendant seeking to vacate a judgment of conviction on the ground of ineffective assistance of counsel need not submit an affidavit or affirmation from his or her former attorney attesting to counsel's ineffectiveness (see People v. Radcliffe, 298 A.D.2d 533, 534–535, 749 N.Y.S.2d 257 ; accord People v. Washington, 128 A.D.3d 1397, 1399, 7 N.Y.S.3d 798 ). Moreover, here, the defendant submitted an explanation for his failure to submit affirmations from his former attorneys (see People v. Morales, 58 N.Y.2d 1008, 1009, 461 N.Y.S.2d 1011, 448 N.E.2d 796 ), and some support for the defendant's allegations may be found in Middler's statement on the record at the plea proceeding indicating that deportation was only a "possibility." In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, the United States Supreme Court ruled that the Sixth Amendment to the United States Constitution requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea.

Therefore, the proper procedural course for the defendant was a motion pursuant to CPL 440.10 (see People v. Diallo, 113 A.D.3d 199, 976 N.Y.S.2d 732; People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386). A defendant seeking to vacate a judgment of conviction on the ground of ineffective assistance of counsel need not submit an affidavit or affirmation from his or her former attorney attesting to counsel's ineffectiveness (see People v. Radcliffe, 298 A.D.2d 533, 534–535, 749 N.Y.S.2d 257; accord People v. Washington, 128 A.D.3d 1397, 1399, 7 N.Y.S.3d 798). Moreover, here, the defendant submitted an explanation for his failure to submit affirmations from his former attorneys (see People v. Morales, 58 N.Y.2d 1008, 1009, 461 N.Y.S.2d 1011, 448 N.E.2d 796), and some support for the defendant's allegations may be found in Middler's statement on the record at the plea proceeding indicating that deportation was only a “possibility.”

"The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion." People v. Wright, 27 NY3d 516, 522 (2016) (internal citations omitted); see People v. Morales, 58 NY2d 1008, 1008 (1983); People v. Gil, 285 AD2d 7, 11-12 (1st Dept. 2001). Accordingly, the defendant's conclusory, self-serving allegations are insufficient to warrant a hearing, see People v. Ozuna, 7 NY3d 913, 915 (2006), and the defendant's ineffective assistance of counsel claim is denied pursuant to CPL § 440.30(4)(b).

"The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion." People v. Wright, 27 N.Y.3d 516, 522, 35 N.Y.S.3d 286, 54 N.E.3d 1157 (2016) (internal citations omitted); see People v. Morales, 58 N.Y.2d 1008, 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983) ; People v. Gil, 285 A.D.2d 7, 11–12, 729 N.Y.S.2d 121 (1st Dept.2001). Accordingly, the defendant's conclusory, self-serving allegations are insufficient to warrant a hearing, see People v. Ozuna, 7 N.Y.3d 913, 915, 828 N.Y.S.2d 275, 861 N.E.2d 90 (2006), and the defendant's ineffective assistance of counsel claim is denied pursuant to CPL § 440.30(4)(b).

CPL § 440.30(4)(d)(I) provides that in considering the merits of a motion to vacate a conviction, the court may deny it without a hearing if the allegations supporting the motion are made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. The failure to present a supporting affidavit from the prior counsel or an explanation for the failure to do so has been repeatedly upheld as justifying the summary denial of a defendant's post conviction motion. See, e.g., People v. Wright, 27 N.Y.3d 516, 35 N.Y.S.3d 286, 54 N.E.3d 1157 (2016) ; People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983). But where the defendant provides a viable explanation for the failure to include his attorney's affidavit, it is an abuse of discretion for the motion court to summarily deny the defendant a hearing.

CPL §440.30(4)(d)(I) provides that in considering the merits of a motion to vacate a conviction, the court may deny it without a hearing if the allegations supporting the motion are made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. The failure to present a supporting affidavit from the prior counsel or an explanation for the failure to do so has been repeatedly upheld as justifying the summary denial of a defendant's post conviction motion. See, e.g., People v. Wright, 27 NY3d 516 (2016); People v. Morales, 58 NY2d 1008 (1983). But where the defendant provides a viable explanation for the failure to include his attorney's affidavit, it is an abuse of discretion for the motion court to summarily deny the defendant a hearing.

Braun, however, merely held as Session: that judgments of conviction enjoy a “presumptive regularity” and it is defendant's “burden of coming forward with allegations which create an issue of fact” ( Braun at 165, 561 N.Y.S.2d 244). The absence of an attorney's affidavit, however, by itself, is not dispositive ( see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983] ). In fact, an affidavit of counsel is not required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel ( People v. Radcliffe, 298 A.D.2d 533, 749 N.Y.S.2d 257 [2nd Dept. 2002] ). “The defendant's application is adverse and hostile to his trial attorney.