PEOPLE v. SMITH

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

Memorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10 (1) (h) seeking to vacate the underlying judgment of conviction based upon the alleged violation of his constitutional right to effective assistance of counsel. We affirm. As County Court properly determined, defendant failed to meet his burden at the hearing on the motion of "proving by a preponderance of the evidence every fact essential to support the motion" (CPL 440.30). Defendant testified at the hearing that defense counsel advised him at the time of the plea that his statutory speedy trial challenge would survive his plea of guilty. According to the testimony of defense counsel at the hearing, however, he advised defendant that only his constitutional speedy trial challenge would survive the plea and that his statutory challenge would not survive the plea, although he could not recall precisely when he had so advised defendant. The court's credibility determination is entitled to great weight ( see People v. Ulrich, 265 AD2d 884, lv dismissed 94 NY2d 799), and we perceive no basis for reversal on the record before us ( cf. id.).