| People v Maldonado |
| 2014 NY Slip Op 02800 [116 AD3d 980] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Manuel Maldonado, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andJohn F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Camacho, J.), rendered February 10, 2011, convicting him of assault in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, for ahearing and a report on the defendant's contention that his first assigned counsel failed toadequately convey a more lenient plea offer to him, and the appeal is held in abeyancepending receipt of the Supreme Court's report. The Supreme Court, Queens County, shallfile its report with all convenient speed.
The defendant contended before he pleaded guilty that, in effect, he had beendeprived of his right to effective assistance of counsel when his first assigned counselfailed to adequately inform him of an earlier, more lenient, plea offer (see People v Fernandez, 5NY3d 813, 814 [2005]; People v Goldberg, 33 AD3d 1018, 1019-1020 [2006]).The Supreme Court declined to consider the defendant's contention on the ground that norelief could be granted even if the defendant's allegations were true and the claimmeritorious. However, after the entry of the defendant's plea, the United States SupremeCourt held in Missouri v Frye (566 US —, —, 132 S Ct 1399, 1410[2012]) that counsel's failure to advise a criminal defendant of a beneficial pleaagreement constitutes ineffective assistance of counsel under the Sixth Amendment(see Strickland v Washington, 466 US 668 [1984]) where the defendantestablishes that there was a reasonable probability that he or she would have accepted theearlier plea offer had it been communicated to him or her, that the election to go to trialor accept a different plea agreement resulted in a harsher penalty, and that, if theprosecution had the discretion to cancel the earlier proposed plea agreement or the trialcourt had the discretion to refuse to accept it, there was a reasonable probability thatneither the prosecution nor the trial court would have prevented the offer from beingaccepted or implemented. In Lafler v Cooper (566 US —, —, 132 SCt 1376, 1391 [2012]), which was decided on the same day as Missouri v Frye,the United States Supreme Court concluded that the remedy for a claim of ineffectiveassistance of counsel that results in a harsher sentence than that initially proposed to thedefendant pursuant to a plea agreement is to direct the People to reoffer the pleaagreement.
Given the defendant's detailed allegations on the record, which had first beenbrought [*2]to the Supreme Court's attention more thanone month before the defendant pleaded guilty, the court should have addressed thecontention. Accordingly, we remit the matter to the Supreme Court, Queens County, for ahearing and a report on the defendant's contention that the People had previously made amore lenient plea offer than the one which he ultimately accepted. The defendant has theburden of establishing that the People made that plea offer, including a determinate termof imprisonment of three years in connection with a plea of guilty to a lesser count(see People v Fernandez, 5 NY3d at 814; People v Vega, 109 AD3d 942, 942 [2013], lv denied22 NY3d 1044 [2013]; People v Goldberg, 33 AD3d at 1019-1020), that hisfirst assigned counsel did not adequately inform him of that offer (see People vVega, 109 AD3d at 942), that there is a sufficient likelihood that he would haveaccepted the offer had counsel adequately communicated it to him (see People v Garcia, 19 AD3d17, 20-21 [2005]), and that there is a reasonable likelihood that neither the Peoplenor the court would have blocked the alleged agreement (see Missouri v Frye,566 US at —, 132 S Ct at 1410).
The Supreme Court, Queens County, is directed to file its report with all convenientspeed (see People v Vega,88 AD3d 1022, 1023 [2011]). We express no opinion as to the merits of thedefendant's contention. Skelos, J.P., Balkin, Lott and Hinds-Radix, JJ., concur.