MEMORANDUM AND ORDER
Appeal, by permission, from an amended order of the County Court of Washington County (Hall Jr., J.), entered May 31, 2019, which denied, among other things, defendants motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of grand larceny in the third degree (two counts), scheme to defraud in the first degree and issuing a bad check (two counts), without a hearing.
Following a jury trial, defendant was convicted of the crimes of grand larceny in the third degree (two counts), scheme to defraud in the first degree and issuing a bad check (two counts) and was sentenced as a persistent felony offender to an aggregate prison term of 20 years to life. Upon defendants direct appeal, this Court affirmed (148 A.D.3d 1293, 49 N.Y.S.3d 567 [2017], lv denied 29 N.Y.3d 1091, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017]). In September 2018, defendant separately moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 and to disqualify County Court from ruling upon the CPL article 440 motion. The People opposed the requested relief, and County Court denied defendants motions without a hearing. When defendant advised the court that he neither received the Peoples papers in opposition nor a copy of the courts written decision and order, County Court afforded defendant additional time to file a reply and thereafter issued an amended decision and order, wherein the court again denied the requested relief. Defendant appeals, by permission, from County Courts amended order.
We affirm. With respect to defendants disqualification motion, the case law makes clear that, absent a statutory basis for disqualification (see Judiciary Law § 14), which defendant does not allege, “a trial judge is the sole arbiter of recusal and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion” (People v. Regan, 192 A.D.3d 1393, 1394, 145 N.Y.S.3d 188 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 514, 170 N.E.3d 388 [May 25, 2021]; see People v. Garrow, 148 A.D.3d 1459, 1460, 51 N.Y.S.3d 208 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017]; People v. Lee, 129 A.D.3d 1295, 1296, 13 N.Y.S.3d 581 [2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016]).
The record before us does not contain any of the exhibits appended to defendants recusal motion – documents that purportedly reflect, among other things, County Courts bias relative to the asserted denial of defendants requests for investigative services and/or a psychiatric evaluation.
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In any event, the substance of these requests was addressed and decided on the prior appeal, wherein we noted that County Court twice awarded defendant funds for investigative services – despite defendants earlier failure to demonstrate why such services were necessary (148 A.D.3d at 1295, 49 N.Y.S.3d 567). We also upheld the denial of defendants request for funding for a psychiatric examination – citing, among other things, defendants failure to provide timely notice of his intent to offer psychiatric evidence (id. at 1296, 49 N.Y.S.3d 567). The balance of defendants bias argument, which includes claims of judicial eye-rolling and allegedly on-the-record accusations that defendant was feigning illness to delay his trial, is based solely upon defendants self-serving affidavit and the speculative assertions contained therein. Absent record evidence to support defendants claim of bias, we find no abuse of discretion in County Courts determination that recusal was unwarranted (see People v. Moreno, 70 N.Y.2d 403, 407, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987]; People v. Regan, 192 A.D.3d at 1394, 145 N.Y.S.3d 188).
As to defendants motion to vacate the judgment of conviction, “[t]he purpose served by a CPL article 440 motion is to inform a court of facts not reflected in the record and unknown at the time of the judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal” (People v. Spradlin, 192 A.D.3d 1270, 1273, 143 N.Y.S.3d 155 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 545, 170 N.E.3d 419 [May 24, 2021]). “On a motion to vacate a judgment of conviction, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” (People v. Gassner, 193 A.D.3d 1182, 1185, 147 N.Y.S.3d 191 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 956, 147 N.Y.S.3d 523, 170 N.E.3d 397 [May 25, 2021]; see People v. Marte–Feliz, 192 A.D.3d 1397, 1397–1398, 144 N.Y.S.3d 255 [2021]). Consistent therewith, “[a] court may deny a CPL 440.10 motion without a hearing where an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence and, under all of the circumstances of the case, there is no reasonable possibility that such allegation is true” (People v. Hoffler, 74 A.D.3d 1632, 1634–1635, 906 N.Y.S.2d 115 [2010] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 17 N.Y.3d 859, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011]; see People v. Marte–Feliz, 192 A.D.3d at 1398, 144 N.Y.S.3d 255; People v. Stanley, 189 A.D.3d 1818, 1819, 136 N.Y.S.3d 569 [2020]; People v. Betances, 179 A.D.3d 1225, 1226, 117 N.Y.S.3d 726 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 9, 148 N.E.3d 473 [2020]).
Defendants CPL article 440 motion was grounded upon his claim of ineffective assistance of counsel. Specifically, defendant asserts that trial counsel failed to locate or call certain witnesses to testify upon defendants behalf at trial, effectively cross-examine the Peoples witnesses and/or render appropriate objections to their testimony, challenge certain jurors during voir dire and/or move for a mistrial when County Court discharged a sworn juror, raise various objections to the Sandoval hearing conducted in this matter, procure certain motor vehicle title and registration documents from the appropriate authorities, pursue plea negotiations and properly advise defendant as to his sentencing exposure. However, defendants own motion papers establish that plea offers were extended to – and apparently rejected by – defendant. Additionally, with the exception of the allegedly erroneous sentencing advice, all of the foregoing issues are based upon matters that either were part of – or through the exercise of due diligence could have been made to appear upon – the trial record (see CPL 440.10[3][a]). As such matters could have been – and in some instances were – raised upon defendants direct appeal,
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they are not properly the subject of a CPL article 440 motion (see People v. Spradlin, 192 A.D.3d at 1273, 143 N.Y.S.3d 155; People v. Young, 115 A.D.3d 1013, 1015, 983 N.Y.S.2d 120 [2014], lv denied 24 N.Y.3d 1124, 3 N.Y.S.3d 765, 27 N.E.3d 479 [2015]).
With respect to trial counsels alleged misrepresentations regarding defendants potential sentencing exposure following trial, the record contains only an unsworn letter purportedly authored by trial counsel – the validity of which the People dispute – suggesting that the maximum sentence that could be imposed would be a prison term of 31/212 to 7 years. Defendant did not, however, “submit an affidavit from trial counsel or provide any explanation for its absence” (People v. Betances, 179 A.D.3d at 1226, 117 N.Y.S.3d 726), nor did defendant tender any other evidence to substantiate his claim that counsel misrepresented defendants sentencing exposure (compare People v. Hill, 114 A.D.3d 1169, 1169–1170, 979 N.Y.S.2d 737 [2014]).
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Under these circumstances, County Court did not abuse its discretion in denying defendants motion to vacate without a hearing. Defendants remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the amended order is affirmed.
FOOTNOTES
1
. County Court similarly noted that defendant failed to provide the court with the cited exhibits – despite a request to do so.
2
. Although defendant continues to fault counsel for neglecting to procure certain witnesses and engaging in an ex parte colloquy with County Court, this Court considered and rejected those claims on the prior appeal, noting that defendants request for a continuance to locate the prospective witnesses was properly denied and that his objection to the colloquy at issue was lacking in merit (148 A.D.3d at 1295–1296, 49 N.Y.S.3d 567).
3
. Defendant does not argue that, but for counsels allegedly erroneous sentencing advice, he would have accepted a plea offer (compare People v. Vargas, 173 A.D.3d 1466, 1468, 103 N.Y.S.3d 669 [2019], lv denied 34 N.Y.3d 955, 110 N.Y.S.3d 635, 134 N.E.3d 634 [2019]), and, given defendants continued assertion that his signature on certain title documents was forged, such claim would, in any event, be belied by the record.
Clark, J.
Lynch, J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.