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 (2016); People v. Morales, 58 N.Y.2d 1008 (1983). But where a 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. See People v. Gil, 285 A.D.2d 7 (1st Dept 2001).

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.

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] ).

For several reasons, defendant's ineffectiveness claim fails. First, defendant has failed either to submit an affidavit from the attorney who represented him when he accepted the plea or offer an explanation for his failure to do so. SeePeople v. Morales , 58 NY2d 1008, 1009 (1983) ; People v. Johnson , 292 AD2d 284, 285 (1st Dept. 2002).Additionally, the defendant's conclusory allegations of coercion on the part of defense counsel are clearly belied by the record of the plea proceedings, in which defendant stated that he was not forced into entering the plea of guilty (February 7, 2018, at 5, lines 7-9).SeePeople v. Nin , 276 AD2d 350 (1st Dept. 2000).

"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.

Defendant neither provided an affidavit from his counsel at the time he entered guilty pleas on both the 1987 and 1988 cases, nor delineated his efforts to do so. Such failure constrains the inescapable conclusion that the allegations are insufficient (see People v. Morales, 58 N.Y.2d 1008, 1009 [1983] [denial of motion to vacate judgment of conviction proper based on defendant's failure to submit an affidavit from the attorney who represented him at plea and sentence, or offer an explanation of such failure] ).Finally, CPL § 440.30(1)(b)(ii)(B) provides that a court shall deny defendant's motion to vacate the judgment of conviction where it is brought more than five years from the date of such judgment unless the defendant demonstrates "that the facts upon which the motion is predicated were unknown to the defendant or his or her attorney and could not have been ascertained by the exercise of due diligence prior to the expiration of the statute of limitations" (CPL 440.30[1][b][ii][B] ). It strains credulity that at the time judgment was entered, neither he nor counsel were aware he had not been adjudicated a youthful offender.