Opinion
410 KA 18-01079
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Parish M. STREETER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, by permission of this Court, from an order denying his motion pursuant to CPL 440.10 to vacate the judgment convicting him after a jury trial of, inter alia, two counts of predatory sexual assault against a child ( Penal Law § 130.96 ). Defendant contends that County Court erred in denying the motion without a hearing. We affirm.
Where, as here, "an ineffective assistance of counsel claim involves ... ‘mixed claims’ relating to both record-based and nonrecord-based issues ... [, such] claim may be brought in a collateral proceeding, whether or not the [defendant] could have raised the claim on direct appeal" ( People v. Evans , 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011], cert denied 565 U.S. 912, 132 S.Ct. 325, 181 L.Ed.2d 201 [2011] ). In such cases, "each alleged shortcoming or failure by defense counsel should not be viewed as a separate ground or issue raised upon the motion," but rather the claim of ineffective assistance of counsel "constitutes a single, unified claim that must be assessed in totality" ( People v. Wilson [appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018] [internal quotation marks omitted]). In order to establish that he or she is entitled to a hearing on a motion pursuant to CPL article 440, a defendant "must show that the nonrecord facts sought to be established are material and would entitle him [or her] to relief" ( People v. Satterfield , 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ).
Here, defendant's claims that defense counsel was ineffective for failing to call various witnesses on his behalf are not supported by sworn allegations of fact (see People v. Ozuna , 7 N.Y.3d 913, 915, 828 N.Y.S.2d 275, 861 N.E.2d 90 [2006] ). Although defendant presented a notarized but unsworn statement from one witness, "there is no indication that the testimony of the uncalled witness would have been anything but cumulative" ( People v. Chelley , 137 A.D.3d 1720, 1721, 28 N.Y.S.3d 215 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016]). Defendant's remaining allegations of shortcomings or failures by counsel do not rise to the level of ineffective assistance of counsel. Thus, assessed in totality, defendant's claim of ineffective assistance of counsel "is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts" ( CPL 440.30 [4] [b] ), and denial of the motion without a hearing on that issue was not an abuse of discretion (see People v. Jones , 24 N.Y.3d 623, 630, 2 N.Y.S.3d 815, 26 N.E.3d 754 [2014] ; People v. Lostumbo , 175 A.D.3d 844, 846, 107 N.Y.S.3d 508 [4th Dept. 2019], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 772, 138 N.E.3d 501 [2019] ).
We further reject defendant's contention that the court erred in denying without a hearing his motion with respect to his contention that he was denied due process by the prosecutor's remarks in summation inasmuch as that issue involves matters of record that could have been raised on direct appeal (see CPL 440.10 [2] [c] ).