People v Jack Vigliotti

People v Vigliotti 2005 NY Slip Op 09846 [24 AD3d 1216] December 22, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent, v Jack Vigliotti, Appellant.

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Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Onondaga County Court (Anthony F. Aloi, J.), entered July 24, 2002. The order denied the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of, inter alia, attempted murder in the second degree.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: County Court did not err in denying without a hearing the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). Subsequent to defendant's conviction and original motion pursuant to CPL 440.10, defense counsel was suspended from the practice of law based upon his conviction in federal court of filing a false document (Matter of Piemonte, 287 AD2d 117 [2001]). We confirmed the findings of fact made by the Referee, "including the finding in mitigation that the addiction of [the attorney] to alcohol and cocaine affected his judgment" (id. at 118). In his present motion pursuant to CPL 440.10, defendant contended, inter alia, that he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant. Defendant, however, failed to allege any facts linking the problems of defense counsel to his representation of defendant. Because the motion papers "do not contain sworn allegations substantiating or tending to substantiate" defendant's claims of ineffective assistance of counsel, we conclude that the court properly denied that part of the motion without a hearing (CPL 440.30 [4] [b]). Defendant's remaining contentions are unavailing inasmuch as they relate to matters that could have been raised on direct appeal or in the prior CPL 440.10 motion (see CPL 440.10 [2] [c]; [3] [c]; 440.30 [2]; People v De Oliveira, 223 AD2d 766, 769 [1996], lv denied 88 NY2d 1020 [1996]). Present—Pigott, Jr., P.J., Scudder, Kehoe, Smith and Pine, JJ.