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.

"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)).

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, interalia, 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.

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)).

Furthermore, the state court's holding, requiring an affidavit of counsel to attest to his own inadequacy, is neither firmly established nor regularly followed by the New York courts. Although there are cases holding that a coram nobis court may dismiss a petitioner's claim of ineffective assistance of counsel because he failed to submit an affidavit by his counsel, see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983); People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486, 486 (1961), the more recent cases hold the opposite. See People v. Radcliffe, 298 A.D.2d 533, 749 N.Y.S.2d 257, 258 (N.Y.App.Div. 2002); People v. Sherk, 269 A.D.2d 755, 704 N.Y.S.2d 401, 401 (N.Y.App.Div. 2000) (stating "[d]efendant's sworn statement raises a factual issue that requires a hearing" where "[defendant's submissions `tend to substantiate all the essential facts' necessary to support defendant's claim of ineffective assistance of counsel"); People v. Gonzalez, 160 A.D.2d 724, 554 N.Y.S.2d 48 (N.Y.App.Div. 1990) (holding that defendant was entitled to a hearing where his sworn allegations set out facts which, if proven, could entitle him to relief); see also Samper v. Greiner, No. 02-2375, 2003 WL 21938757 (2d Cir. Aug. 13, 2003) (summary order) (rejecting state's contention that state law clearly required petitioner to submit an affidavit from his trial counsel to the state court when claiming ineffective

It is true that ordinarily a complete record adduced through a motion to vacate the judgment of conviction pursuant to CPL 440.10, which includes an affidavit from trial counsel explaining his or her trial tactics, is necessary in order to properly evaluate a claim of ineffective assistance of counsel (see e.g., People v. Figueroa, 254 A.D.2d 226, lv denied 92 N.Y.2d 1049). The failure to present such an affidavit from the attorney or an explanation for the failure to do so has been held to justify denial of a defendant's motion without a hearing (see, People v. Morales, 58 N.Y.2d 1008). In the instant case, however, defendant provided a viable explanation for the failure to include such affidavit — i.e., counsel's disbarment prior to defendant's bringing the motion, buttressed by the complaint filed with the Grievance Committee regarding Rojas' conduct. It was, therefore, an abuse of discretion for the court to summarily deny defendant's Section 440.10 motion on the basis of this procedural deficiency.

A 440.10 motion based upon a claim of ineffective assistance of counsel may be denied without a hearing where the defendant fails to provide an affirmation from trial counsel supporting the factual allegations contained in the motion, or an explanation for his failure to do so. People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983): Stewart, supra at 249–50, 745 N.Y.S.2d 151 (summary denial of 440.10 motion is proper where defendant failed to reveal an issue to be resolved by a hearing); People v. Johnson, 292 A.D.2d 284, 285, 739 N.Y.S.2d 381 (1st Dept.2002). But see, People v. Gil, 285 A.D.2d 7, 10, 729 N.Y.S.2d 121 (1st Dept.2001)(court erred in denying hearing where defendant provided viable explanation for failure to include affidavit, namely, fact that the attorney had been disbarred).

A judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]). The absence of an attorney's affidavit, however, by itself, is not dispositive (see People v Morales, 58 NY2d 1008 [1983]). In fact, where a defendant raises an ineffective assistance claim based on an alleged error or omission of trial counsel, an affidavit of counsel may not be required because "[t]he defendant's application is adverse and hostile to his trial attorney" (People v Radcliffe, 298 AD2d 533, 534 [2nd Dept 2002]).

Nor does defendant allege that the arguments made by his attorney were, in fact, meritless. Moreover, defendant has failed to meet his burden of submitting an affirmation from his former attorney tending to substantiate his claims, and has offered absolutely no explanation for his failure to do so ( see, e.g., People v. Morales, 58 N.Y.2d 1008; People v. Taylor, 211 A.D.2d 603 [1st Dept 1995]). Defendant's allegations, then, are insufficient to substantiate his claims concerning his attorney's conduct ( see CPL 440.30 [b], [d]).