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.

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

In opposition, the People argued that summary denial of the motion was warranted, without a hearing, because the defendant had failed to obtain such an affidavit or explain why he had not. The County Court denied the defendant's motion without explanation and without setting forth findings of fact, conclusions of law, and reasons for its determination (see CPL 440.30). The People rely on People v. Morales ( 58 N.Y.2d 1008), and People v. Scott ( 10 N.Y.2d 380), to vindicate the summary denial of the defendant's motion. They invest greater reliance in those cases for that result than the cases can support.

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.

nt defendant, but that allegation is directly contrary to defendant's express representations to the trial court during the Gomberg inquiry (cf.People v. Ferreras , 70 N.Y.2d 630, 631, 518 N.Y.S.2d 780, 512 N.E.2d 301 [1987] ). "[T]he court [is] not required to credit defendant's evidence of fraud" – particularly, his own, utterly unexplained, fraud on the trial court – "that [is] self-serving and uncorroborated" because the "court does not have ‘to accept every sworn allegation as true’ " ( People v. Chu–Joi , 26 N.Y.3d 1105, 1107, 26 N.Y.S.3d 229, 46 N.E.3d 612 [2015], quoting People v. White , 309 N.Y. 636, 641, 132 N.E.2d 880 [1956], cert denied 352 U.S. 849, 77 S.Ct. 69, 1 L.Ed.2d 60 [1956] ). Under these circumstances, "[t]he failure to include an affirmation from [trial] counsel, or an explanation for the failure to do so, ... warrant[s] the summary denial of ... 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] ; seePeople v. Morales , 58 N.Y.2d 1008, 1009, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983] ; People v. Scott , 10 N.Y.2d 380, 381–382, 223 N.Y.S.2d 472, 179 N.E.2d 486 [1961] ).In short, "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations" that actually "substantiat[e] or tend[ ] to substantiate all the essential facts as required by [ CPL 440.30(1) ]" ( CPL 440.30[4][b] ; cf.People v. Coleman , 10 A.D.3d 487, 487–488, 781 N.Y.S.2d 510 [1st Dept. 2004] ).

The court properly denied, without a hearing, defendant's motion to vacate his judgment of conviction on the ground of ineffective assistance of counsel. Defendant failed to include an affidavit of his trial counsel explaining why defendant's father was not called as a witness, or an explanation as to why such affidavit was not included (see, People v. Morales, 58 N.Y.2d 1008; People v. Gil, 285 A.D.2d 7, 11-12). Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.

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]).

Furthermore, defendant failed to submit an affidavit or affirmation from counsel addressing whether and why he had advised defendant against accepting the plea offers and whether and when he was aware and advised defendant that he faced potential mandatory persistent violent felony offender sentencing. As such, County Court was well within its discretion in summarily denying defendant's second motion (see CPL 440.30[1][a] ; People v. Wright , 27 N.Y.3d at 522, 35 N.Y.S.3d 286, 54 N.E.3d 1157 ; People v. Morales , 58 N.Y.2d 1008, 1009, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983] ; People v. Scott , 10 N.Y.2d 380, 381, 223 N.Y.S.2d 472, 179 N.E.2d 486 [1961] ).ORDERED that the order is affirmed.

"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 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).