Opinion
No. 2005-04232.
February 6, 2007.
Appeal by the defendant, by permission, from an order of the County Court, Nassau County (Peck, J.), entered April 5, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (DeRiggi, J.), rendered May 5, 2003, convicting him of robbery in the second degree, robbery in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Margaret E. Mainusch of counsel), for respondent.
HOWARD MILLER, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, MARK C. DILLON, JJ.
Before: Miller, J.P., Spolzino, Ritter and Dillon, JJ.
Ordered that the order is affirmed.
In deciding a motion pursuant to CPL 440.10, the trial court need not hold a hearing if the parties' submissions are sufficient to render a determination ( see CPL 440.30, [4]; People v Satterfield, 66 NY2d 796, 799; People v Demetsenare, 14 AD3d 792, 793). The defendant must show that the nonrecord facts sought to be established are material and would entitle him or her to relief ( see People v Satterfield, supra; People v Demetsenare, supra). Here, the defendant's claims of ineffective assistance of trial counsel were largely based upon unsubstantiated, conclusory allegations, and thus, the defendant's motion pursuant to CPL 440.10 was properly denied without a hearing ( see People v Hall, 28 AD3d 678, lv denied 7 NY3d 867; People v Bacchi, 186 AD2d 663).
The defendant's remaining contention was not raised in the underlying motion papers and therefore is not properly before us on appeal.