Opinion
October 25, 1993
Appeal from the Supreme Court, Richmond County (Kuffner, J.).
Ordered that the judgment and order are affirmed.
The defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, contending that he was deprived of effective assistance of counsel due to defense counsel's failure to discuss the prosecutor's plea offer with him, a conflict of interest, counsel's drug addiction, and his sleeping during trial. On appeal, the defendant contends that the Supreme Court erred in denying his motion pursuant to CPL 440.10 without a hearing. We disagree.
A court may deny a motion pursuant to CPL article 440 without a hearing if it appears that the moving papers do not allege any ground constituting a legal basis for the motion (see, CPL 440.30 [a]; People v. Elliott, 187 A.D.2d 666). In the instant case, a hearing was unnecessary since the facts set forth in the defendant's motion papers which do not appear in the record on direct appeal, even if true, would not entitle the defendant to a vacatur of the judgment of conviction (see, People v. Ferreras, 70 N.Y.2d 630; People v. Satterfield, 66 N.Y.2d 796, 799; People v. Liggins, 181 A.D.2d 916).
Specifically, defense counsel's failure to discuss the prosecution's plea offer with the defendant did not render his representation ineffective since the defendant's original trial counsel had advised the defendant with respect to the plea offer and the defendant had rejected the offer (cf., People v. Reed, 152 A.D.2d 481). Moreover, the motion papers only set forth conclusory and unsubstantiated allegations that defense counsel was operating under a conflict of interest due to his alleged drug addiction during trial (see, People v. Pachay, 185 A.D.2d 287). Finally, since counsel's alleged drug addiction and sleeping during trial are not a per se violation of the defendant's right to effective assistance of counsel (see, People v. Tippins, 173 A.D.2d 512, cert denied ___ US ___, 112 S Ct 952; People v. Badia, 159 A.D.2d 577), the defendant was only entitled to a hearing on his motion if he established that the totality of the circumstances of the case showed that counsel failed to provide meaningful representation (see, People v Tippins, supra; People v. Badia, supra). However, a review of the record reveals that defense counsel effectively cross-examined the prosecution witnesses, presented a defense of mistaken identity, and gave opening and closing statements which were consistent with the defense. Thus, the record, viewed in the totality of the circumstances of the case, established that counsel provided the defendant with meaningful representation. Therefore, the Supreme Court providently exercised its discretion in denying the defendant's motion to vacate the judgment, without a hearing.
The defendant's contentions raised on his direct appeal, including his claim that the trial court had a duty to inform him of disciplinary proceedings pending against defense counsel, do not warrant reversal. Rosenblatt, J.P., Lawrence, O'Brien and Ritter, JJ., concur.