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