        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

865
KA 13-01530
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TUREMAIL MCCULLOUGH, DEFENDANT-APPELLANT.


JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Francis A. Affronti, J.), dated July
3, 2013. The order denied the motion of defendant to vacate a
judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order summarily denying
his pro se motion pursuant to CPL 440.10 seeking to vacate the
judgment convicting him upon a jury verdict of robbery in the first
degree (Penal Law § 160.15 [4]), assault in the second degree
(§ 120.05 [6]), and grand larceny in the third degree (§ 155.35). On
appeal, defendant contends that he was deprived of effective
assistance of counsel at trial. We conclude that Supreme Court
properly denied the motion without a hearing.

     The court properly concluded that it was required to deny the
motion with respect to the majority of defendant’s claims of
ineffective assistance of counsel because they could have been, or
were, raised on his direct appeal from the judgment of conviction (see
CPL 440.10 [2] [a], [c]; People v Mastowski, 63 AD3d 1589, 1590, lv
denied 12 NY3d 927, reconsideration denied 13 NY3d 837; People v Hall,
28 AD3d 678, 678, lv denied 7 NY3d 867).

     Defendant’s remaining claims were properly rejected on the merits
without a hearing. With respect to defendant’s claim that his counsel
was ineffective in failing to obtain and view a video of an earlier
robbery that defendant contends would establish that he was innocent
of this crime, the court properly rejected that claim without a
hearing because “the moving papers do not contain sworn allegations
                                 -2-                           865
                                                         KA 13-01530

substantiating or tending to substantiate all the essential facts”
(CPL 440.30 [4] [b]; see People v Ozuna, 7 NY3d 913, 915). Defendant
did not indicate that he observed that video, and thus his affidavit
in support of that part of the motion is “based only on speculation
and conjecture” (People v Studstill, 27 AD3d 833, 835, lv denied 6
NY3d 898).

     The court also properly denied the motion without a hearing with
respect to defendant’s claim that counsel was ineffective in failing
to introduce hearsay statements of a witness regarding the perpetrator
of that earlier crime. The statements of the witness indicated that
the same person perpetrated both crimes and that defendant committed
the crime on appeal, and defendant failed “to demonstrate the absence
of strategic or other legitimate explanations” for defense counsel’s
alleged error in failing to introduce evidence tending to establish
that defendant committed another crime (People v Rivera, 71 NY2d 705,
709). For the same reasons, we conclude that defendant failed to
establish that counsel was ineffective in stipulating to the admission
of the prior testimony of that witness. Defendant contends that
counsel should have attempted to preclude the testimony, but the trial
record demonstrates that counsel made effective use of the witness’s
description of the perpetrator in support of the misidentification
defense that was pursued at trial. It is well settled that “mere
disagreement with trial strategy is insufficient to establish that
defense counsel was ineffective” (People v Henry, 74 AD3d 1860, 1862,
lv denied 15 NY3d 852).

     Finally, with respect to defendant’s claim that counsel was
ineffective because he did not fully explain a plea offer, the record
establishes that defendant proclaimed his innocence and flatly
rejected that offer. We conclude that the court properly denied the
motion without a hearing with respect to that claim “on the ground
that the allegations in support of the motion are made solely by
defendant, . . . those allegations are unsupported by other evidence
and . . . , under all the circumstances, there is no reasonable
possibility that such allegations are true” (People v Santana, 101
AD3d 1664, 1664-1665, lv denied 20 NY3d 1103; see CPL 440.30 [4] [d]).

     We have considered defendant’s remaining claims of ineffective
assistance, and we conclude that they are without merit.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
