People v. Jon , 810 N.Y.S.2d 447 ( 2006 )

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered March 17, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 11/2 to 41/2 years, and order, same court and Justice, entered on or about July 8, 2003, which denied defendant’s CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]).

The court properly exercised its discretion in denying defendant’s CPL 440.10 motion without a hearing (see CPL 440.30 [4] [a], [b]). Although defendant claimed that his trial attorney rendered ineffective assistance by fading to call a particular witness, defendant’s moving papers gave no indication of the substance of the potential witness’s testimony (see People v Session, 34 NY2d 254 [1974]). Concur—Tom, J.P., Friedman, Gonzalez, Sweeny and McGuire, JJ.