State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 106099 

107844

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BRETT W.,

Appellant.

________________________________

Calendar Date: October 17, 2016

Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

__________

G. Scott Walling, Schenectady, for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for

respondent.

__________

Rose, J.

Appeals (1) from a judgment of the County Court of Franklin

County (Main Jr., J.), rendered September 3, 2013, which

sentenced defendant upon her adjudication as a youthful offender,

and (2) by permission, from an order of said court, entered

September 17, 2015, which denied defendant's motion pursuant to

CPL 440.10 to vacate the judgment of conviction, after a hearing. 

In February 2013, defendant, a 17-year-old high school

student, sold 11⁄2 brownies purportedly containing marihuana to a

classmate in school. After that classmate and another student

consumed the brownies and became ill, defendant was charged in a

felony complaint with criminal sale of marihuana in the second

degree and in an information with the misdemeanor of endangering
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the welfare of a child. By letter dated March 6, 2013, the

People made a plea offer to dispose of all pending charges

against defendant in exchange for her agreement, by April 6,

2013, to plead guilty to endangering the welfare of a child. The

proposed plea agreement included a sentence recommendation of a

youthful offender adjudication and three years of probation. 

After receiving no response from defendant, the People obtained

an indictment charging defendant with criminal sale of marihuana

in the second degree and endangering the welfare of a child. 

Pursuant to a plea agreement, defendant pleaded guilty to the

felony of attempted criminal sale of marihuana in the second

degree. Consistent with the terms of the plea agreement,

defendant was adjudicated a youthful offender and sentenced to

120 days in jail and five years of probation. Defendant

subsequently moved pursuant to CPL article 440 to vacate the

judgment of conviction, claiming, among other things, that she

was never timely informed of the initial March 2013 plea offer

and, therefore, received ineffective assistance of counsel. 

Following an evidentiary hearing, County Court denied the motion,

finding that defendant failed to establish that her counsel was

ineffective by not conveying to her the People's initial, more

favorable, plea offer. Defendant now appeals from the judgment

and, with permission, from the order denying her motion.

Defendant claims on her appeal from the denial of the CPL

article 440 motion that she was deprived of the effective

assistance of counsel based upon defense counsel's failure to

timely inform her of the March 2013 proposed plea agreement.1 In

this context, "'[m]eaningful representation by counsel includes

the conveyance of accurate information regarding plea

negotiations, including relaying all plea offers made by the

prosecution'" (People v Brunson, 68 AD3d 1551, 1555 [2009], lv

denied 15 NY3d 748 [2010], quoting People v Rodgers, 8 AD3d 888,

890 [2004]; see Missouri v Frye, 566 US ___, ___, 132 S Ct 1399,

1407-1410 [2012]). "In order to prevail on an ineffective

assistance of counsel claim based upon the defense counsel's

1 Defendant does not raise any arguments relative to her

direct appeal. 
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failure to adequately inform the defendant of a plea offer, the

defendant has the burden of establishing that the People made the

plea offer, that the defendant was not adequately informed of the

offer, that there was a reasonable probability that the defendant

would have accepted the offer had counsel adequately communicated

it to him [or her], and that there was a reasonable likelihood

that neither the People nor the court would have blocked the

alleged agreement" (People v Nicelli, 121 AD3d 1129, 1129-1130

[2014] [citations omitted], lv denied 24 NY3d 1220 [2015]; see

People v Fernandez, 5 NY3d 813, 814 [2005]; People v Maldonado,

116 AD3d 980, 980-981 [2014]). The remedy for a meritorious

"claim of ineffective assistance of counsel that results in a

harsher sentence than that initially proposed to the defendant

pursuant to a plea agreement is to direct the People to reoffer

the plea agreement" (People v Maldonado, 116 AD3d at 981; see

Lafler v Cooper, 566 US ___, ___, 132 S Ct 1376, 1391 [2012]).

The record evidence demonstrates that the initial plea

offer was made by the People in writing and communicated to the

Conflict Defender's Office, and this initial offer was more

favorable to defendant than the plea agreement to which she

ultimately agreed. In addition, defendant's uncontroverted

testimony at the evidentiary hearing reflects that she would have

accepted the People's initial offer. While the testimony

indicates that, despite purported attempts, neither defendant nor

defense counsel was able to establish communication with the

other during the relevant time period, there is no evidence

demonstrating that defendant was apprised or aware of the initial

plea offer prior to its expiration. Although there is an

indication that defendant, among other things, provided the

assigned counsel coordinator with her mother's cell phone number

instead of her own, the record evidence demonstrates that there

were other means by which defendant could have been contacted or

spoken to in person. In addition, the hearing testimony

establishes that defendant was not afforded an opportunity to

meet with her defense counsel prior to the expiration of the plea

offer and was not able to reach her attorney by telephone despite

making at least one attempt following her initial court

appearance. Nor is there any record evidence that suggests that

either the People or County Court would have blocked the initial
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proposed plea agreement. Accordingly, under the circumstances

presented here, we find that defendant met her burden of

establishing that she received ineffective assistance of counsel

and, therefore, we grant defendant's CPL 440.10 motion, vacate

the judgment of conviction and direct the People to reoffer the

initial plea agreement (see Lafler v Cooper, 132 S Ct at 1391;

People v Maldonado, 116 AD3d at 981). In light of our decision,

defendant's remaining contentions need not be addressed.

Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed. 

ORDERED that the order is reversed, on the law, motion

granted, judgment vacated, and matter remitted to the County

Court of Franklin County for further proceedings not inconsistent

with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court