On March 5, 2019, a jury found the defendant guilty of Criminal Sale of a Controlled Substance in the First Degree (an A-I felony), two counts of Criminal Sale of a Controlled Substance in the Second Degree (an A-II felony), two counts of Criminal Sale of a Controlled Substance in the Third Degree (a B felony), one count of Criminal Possession of a Weapon in the Second Degree (a C Violent felony), and one count of Criminal Sale of a Firearm in the Third Degree (a D felony). Prior to trial, Indictments 15/2018 and 34/2018 were consolidated for trial, and some charges on Indictment 15/2018 were severed. The verdicts were for the charges on Indictments 15/2018 and 34/2018 which had been consolidated for trial.

On April 11, 2019, defendant pled guilty to Criminal Possession of a Controlled Substance in the Fourth Degree (a class C felony) in satisfaction of the severed counts of Indictment 15/2018.

The defendant was adjudicated a second felony offender with a prior violent felony conviction.

On May 2, 2019, the court sentenced the defendant on the trial charges from Indictments 15/2018 and 34/2018, as follows:

On Count One of Indictment 15/2018, Criminal Sale of a Controlled Substance in the First Degree, the defendant was sentenced to a determinate sentence of eighteen years [*2]incarceration and five years of Post-Release Supervision;

On Count Seven of Indictment 15/2018, Criminal Sale of a Controlled Substance in the Second Degree, defendant was sentenced to a determinate sentence of eight years incarceration. The sentence on Count Seven was ordered to run consecutive to Count One;

On Count One of Indictment 34/2018, Criminal Possession of a Weapon in the Second Degree, the defendant was sentenced to a determinate sentence of ten years incarceration to run consecutively to any and all other counts;

On Count Four of Indictment 15/2018, Criminal Sale of a Controlled Substance in the Second Degree, the defendant was sentenced to a determinate sentence of eight years incarceration to run concurrently to Count One;

On Count Eight of Indictment 15/2018, Criminal Sale of a Controlled Substance in the Third Degree, the defendant was sentenced to a determinate sentence of six years incarceration to run concurrently to Count Seven and Count One;

On Count Five of Indictment 34/2018, Criminal Sale of a Firearm in the Third Degree, the defendant was sentenced to a determinate sentence of six years incarceration to run concurrently to Count One;

On Count Six of Indictment 34/2018, Criminal Possession of a Controlled Substance in the Third Degree, the defendant was sentenced to a determinate sentence of six years incarceration to run concurrently to all other sentences.

All of the aforementioned charges were subject to post release supervision that were to run concurrent to one another for a maximum amount of five years post release supervision.

On Count Nine of Indictment 15/2018, Criminal Possession of a Controlled Substance in the Fourth Degree, to which the defendant pled guilty, the defendant was sentenced to a determinate sentence of three and a half years of incarceration as well as one and a half years of post release supervision to run concurrent to the other sentences.

On or about July 15, 2024, the defendant filed a motion pursuant to CPL § 440.10 for an order vacating his judgment in the instant indictment. The defendant listed the following grounds:

1. Jurors were asleep during the trial;

2. Ineffective assistance of counsel;

3. Closed courtroom to my family members;

4. Excessive sentence; and

5. Improper denial of change of venue motion.

The People responded on March 31, 2025.

For the reasons stated herein, the defendant's motion is denied.

The defendant's claim that jurors were sleeping during a potion of the trail is unsupported by any evidence, and is summarily denied without a hearing since "the motion 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 the "allegation of fact essential to support the motion (i ) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no [*3]reasonable possibility that such allegation is true (CPL § 440.30 [4][d]). There is no need for a hearing since "a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" (People v Dorvil, 234 AD3d 1106 [3d Dept 2025] [internal citations omitted]); in particular, the defendant's assertions in this regard "are supported entirely by defendant's own self-serving affidavit, and the absence of an affidavit from his counsel is entirely unexplained" (People v Dorvil, 234 AD3d 1106 [3d Dept 2025]), and "the failure to include an affirmation from [trial] counsel", (or any other witness present in the courtroom) "or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion" (People v Hooker, 230 AD3d 1465 [3d Dept 2024], citing People v Wright, 27 NY3d 516 [2016]; People v Fish, 208 AD3d 1546, [3d Dept 2022]).

The defendant's notice of motion says "Ineffective Assistance of counsel". In the Statement of Facts, the defendant contends that "my lawyer never objected to the jurors being asleep which is ineffective assistance of counsel".

As indicated, the defendant's moving papers are devoid of any facts which indicate that the jurors were asleep at anytime during the trail. As such, he has not shown that his lawyer was ineffective for failing to object to something that there is no proof happened. The defendant's motion is denied, and no hearing is necessary, since, the "defendant's claim that his trial counsel rendered ineffective assistance . . .although premised upon factual allegations not reflected on the face of the record—is based solely on defendant's own conclusory affidavit and is otherwise unsubstantiated (see CPL 440.30 [4] [d] . . ."(People v Spradlin, 192 AD3d 1270 [3d Dept 1270 2021] [internal citations omitted], lv denied 37 NY3d 960 [2021]).

The defendant's claim that the courtroom was improperly closed during the testimony of the undercover police officer is summarily denied since it was heard by the appellate court on direct appeal.

After finding that the defendant's claim that he was denied a public trial after the trial court conducted a Hinton hearing (People v Hinton, 31 NY2d 71 [1993]) was "without merit", the appellate court noted that the defendant was "inconsistent and untruthful" in describing his relationship with the spectators he desired to be in the courtroom while the undercover police officer testified. The appellate court found that "the (trial) court did not improvidently exercise its discretion in excluding the subject spectators" (People v Watkins, 221 AD3d 620 [2d Dept 2023], lv denied 41 NY3d 967 [2024]). Under these circumstances, "the court must deny a motion to vacate a judgment when: (a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" (CPL § 440.10 (2)(a); People v Strawbridge, 76 AD3d 115 [3d Dept 2010], lv denied 15 NY3d 895 [2010]).

It should also be noted that the defendant's claim that his "family" was not allowed to be present in the courtroom is belied by the record; his family was allowed to be present if they were actual family members and would not pose a threat to the safety of the undercover police officer. A woman who was present in court on several occasions throughout the trial, and who brought a [*4]child that she claimed to be the defendant's into court on several days, was permitted to stay in the courtroom during the testimony of the undercover. A spectator whom the defendant claimed was his step-brother, but who in fact was a gang member with felony convictions and was actually not related to the defendant in any way, was not permitted to stay in the courtroom during the testimony of the undercover. No other actual family members showed up during the trial or asked for permission to be in the courtroom during the testimony of the undercover officer.

The defendant's claim of excessive sentence is procedurally barred and therefore denied.

The defendant appealed his conviction, and as part of the appeal the defendant claimed that his sentence was excessive. The appellate court addressed this claim directly and reduced the defendant's sentence. Therefore the claim is summarily denied pursuant to CPL § 440.10 (2)(a). "A court must deny a motion to vacate a judgment of conviction where "[t]he ground or issue raised . . . was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" People v Carter, 105 AD3d 1149 [3d Dept 2013]; CPL § 440.10 [2)][a])).

In any event, the defendant's new sentence is not excessive and his claim has no merit.

As a second felony offender with a prior violent felony conviction, the defendant faced the following determinate sentences for the crimes he was convicted of at trial:^[FN1]

Criminal Sale of a Controlled substance in the First Degree: 15 - 30 years;

Criminal Sale of a Controlled substance in the Second Degree: 8 - 17 years;

Criminal Sale of a Controlled substance in the Second Degree: 8 - 17 years;

Criminal Sale of a Controlled Substance in the Third Degree: 6 - 15 years;

Criminal Sale of a Controlled Substance in the Third Degree: 6 - 15 years;

Criminal Possession of a Weapon in the Second Degree: 7 - 15 years;

Criminal Sale of a Firearm in the Third Degree: 5 - 7 years;

Criminal Possession of a Controlled Substance in the Third Degree: 6 - 15 years.

If the defendant had been given the minimum sentence for each conviction, and all of the sentences ran consecutively to each other, the defendant would have received a determinate sentence totaling 61 years; if the maximum sentence had been imposed on each conviction, and the sentences for each conviction ran consecutively, the defendant would have received a determinate sentence totaling 116 years. Instead, the defendant received a combination of concurrent and consecutive sentences which totaled 36 years from the trial court.

On appeal the Second Department reduced the defendant's sentence to 18 years by "providing that all of the sentences shall run concurrently with each other" (People v Watkins, 221 AD3d 620 [2d Dept 2023], lv denied 41 NY3d 967 [2024]).

Even if the consideration of the defendant's sentence was not procedurally barred, this court would be of the opinion that the defendant's reduced sentence is not excessive.

The defendant's claim that a request to change venue was improperly denied has no merit.

The defendant's moving papers are devoid of any facts supporting that a motion for a change of venue was even made (CPL § 440.30 [4][b]; CPL § 440.30 [4][d]). The defendant did not raise "venue" on his direct appeal, and the contention in the instant motion is an improper attempt to use the "CPL article 440 motion" . . . "as a vehicle for an additional appeal", which is not allowed (People v Hooker, 230 AD3d 1465 [3d Dept 2024]). The defendant's motion is denied and no hearing is necessary (People v. Spradlin, 192 AD3d 1270 [3d Dept 2021], lv denied 37 NY3d 960 [2021]).

The defendant has not met his burden and each of his requests is summarily denied; no hearings are necessary. Accordingly, it is hereby

ORDERED that the defendant's motion is denied in all respects.

This shall constitute the decision and order of the court.