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

Here, defendant has not provided an affidavit from his prior attorney, who would be in a position to account for why she did not bring a speedy trial motion on his behalf despite defendant's (and family members) alleged repeated requests to do so. This would have permitted counsel to respond directly to these allegations (see People v Rivera, 71 NY2d 705,709). Nor has defendant offered an explanation of his failure to at least make an attempt to secure an affidavit from counsel (People v, Ozuna, supra at 915; People v. Morales, 58 NY2d 1008 [1983]). The court notes that it is not disputed that defendant did not request that his trial counsel be relieved upon her decision not to either file a speedy trial motion on defendant's behalf or adopt his pro-se motion.

Thus, since defendant has failed to provide any credible or corroborative evidence that his attorney's representation was deficient in the only manner alleged, he has failed to satisfy the first part of the Strickland test. see People v. Morales, 58 NY2d 1008, 1009 (1983); People v. Session, 34 NY2d 254 (1974); People v. Baker, 2010 NY Misc LEXIS 2237 (Sup Court Kings County). Even if there were sufficient proof that defendant's attorney was somehow ineffective in the manner defendant claims, he has also failed to satisfy the second part of the Strickland test, because he has not credibly shown he suffered prejudice as a result of the purported lack of advice.