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.

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)).

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

To the extent that the defendant further makes some references in one of the exhibits annexed to his moving papers suggesting that he felt somewhat pressured by his retained attorney to enter his guilty plea, the Court notes initially that the defendant's attorney has not raised this ground as one of the bases for the vacatur of the instant judgment of conviction in his moving papers. However, to the extent that the defendant does allude to such a ground for relief in his unsworn statement annexed to the instant motion, the Court notes that a claim to the effect that "a plea of guilty was secured by coercion and intimidation" may be properly denied without a hearing where the "defendant failed to submit an affidavit from the attorney who represented him [or her] at plea and sentence or offer an explanation of his [or her] failure to do so" ( see People v Morales, 58 NY2d 1008, 1009; see also People v Lowrance, 41 NY2d 303, 304-05; People v Dixon, 29 NY2d 55). Accordingly, as the defendant has failed to provide the Court with any sworn allegations of fact in support of this claim on his own behalf or from his retained attorney, vacatur of the instant judgment of conviction upon this claim of coercion is denied.

When a motion to vacate a conviction alleging ineffective assistance of counsel is submitted without an affirmation from trial counsel such omission is not fatal but such an omission or lack of explanation for the omission may be considered by a Court in denying such a motion without a hearing. See, People v. Morales, 58 NY2d 1008 (1983). The Defendant has not alleged sufficient facts to support a conclusion that had he received "incorrect" advice regarding any immigration consequences of his plea of guilty to Disorderly Conduct.