Liyao Chen and three co-defendants were arrested on January 23, 2011, and charged with, inter alia, Attempted Murder in the Second Degree, in violation of PL § 110/125.25(1). Specifically, Liyao Chen was accused of being part of a group of five men who attacked two complainants as they were walking in the Sunset Park neighborhood. See People v. Chen, 200 AD3d 1066 (2nd Dept. 2021). During the attack, the male complainant was punched, kicked, and repeatedly stabbed, while the female complainant was punched about the head and body and stabbed once in the leg. Id. Shortly thereafter, Liyao Chen and three of the five perpetrators were apprehended a few blocks away, having been identified by the female complainant as the assailants. Id. The fifth suspect has never been located.

Liyao Chen now moves this Court, by motion pursuant to CPL § 440.10(h), to vacate upon the ground that "the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Upon careful consideration of the written submissions by Liyao Chen and by the People, evidence adduced at hearings, review of the original court file, minutes from the original proceedings, and review of applicable case law, the motion is granted for the reasons discussed herein.

At their arraignments in Criminal Court following their arrest, the notices of appearance show three defendants (Liyao Chen, Yi Qui, and An Chen) were represented by Edward Friedman, pursuant to the 18-b Assigned Counsel Plan, for arraignment purposes only. Counsel for Jin Zheng is unclear. By the 180.80 date, on January 28, 2011, an attorney named Peter Quan entered notices of appearance for the three co-defendants: Jin Zheng, Yi Qiu, and An Chen, but not for Liyao Chen.

At the first court appearance post-indictment, on March 23, 2011, Quan appeared on behalf of all four defendants, including Liyao Chen. See Transcript of March 23, 2011 (hereafter [*2]"March 23rd Tr."). Liyao Chen was not present at this appearance because he had been arrested earlier that day on a misdemeanor charge. Id. at 2:13-3:9. The Honorable Patricia DiMango deferred administering Gomberg warnings to all four defendants "to see what the prosecution's facts are and what their offer is." Id. at 3:23-25. Judge DiMango adjourned the matter to April 7, 2011, for Liyao Chen to appear and noted "that a Gomberg inquiry must be made." Id. at 4:4-18.

On April 7, 2011, Quan filed a late notice of appearance on behalf of Liyao Chen. See March 23rd Tr. at 2:1-7. On April 7th, Liyao Chen was arraigned on the indictment. See generally Transcript of April 7, 2011 (hereafter "April 7th Tr."). Quan confirmed that he was in receipt of the indictment, discovery, and voluntary disclosures. Id. at 2:20-22. Quan declined the People's plea offer of incarceration for two years followed by three years of post-release supervision. Id. at 3:2-8. Judge DiMango conducted no Gomberg inquiry and adjourned the case for Liyao Chen to join his three co-defendants. Id. at 3:10-15.

On May 13, 2011, all four defendants appeared before Judge DiMango, who made a limited Gomberg inquiry through a Mandarin interpreter:

Court: Mr. Zheng, Mr. Qiu, Liyao Chen and An Chen, right now you all are all represented by Mr. Quan. Do you each understand that you are each entitled to your own attorney and that if you could not afford an attorney one could be appointed for you by the court? Mr. Chen, do you understand that, sir?

Defendant: Yes.

Court: Liyao Chen, do you understand that, sir?

Defendant: Yes.

Court: Mr. Qiu, do you understand that?

Defendant: Yes.

Court: Mr. Zheng, do you understand that?

Defendant: Yeah.

Court: You also understand that if the case goes to the trial you have to have separate lawyers because your — there may be issues that each one of you wants to raise that are not consistent with the claims that another defendant may make. That does not change the burden of proof being on the People to prove the case, but I'm letting you know that if the case does go to trial, that will be an issue. For now absent some other request, I will allow Mr. Quan to continue representing all for at this point.

At this May 13th appearance, the People also stated that the offer as to all four defendants on a plea to Robbery in the First Degree was now 5 years imprisonment followed by 5 years of post-release supervision. Id. at 4:13-18. Quan indicated that there was no interest in the offer. Id. at 4:19-21.

On June 30, 2011, the case was heard by the Honorable Judge Miriam Cyrulnik, who confirmed that extensive discovery had been shared, and adjourned the case for DNA results from the OCME. See Transcript of June 30, 2011, at 2:14-24.

On July 21, 2021, the People produced the DNA findings: one sample of the complainants' blood recovered from the boot of co-defendant Eric Wong, and two distinct DNA profiles from the knife recovered at the scene. See Transcript of July 21, 2011, at 2:25-3:9. Quan refused to consent to provide DNA swabs for any of the defendants, so the case was put over for [*3]a motion to compel. Id. at 3:10-22. As to the issue of joint representation, even though evidence now pointed to different levels of culpability between the defendants, Judge Cyrulnik only reiterated that each defendant could have separate counsel but conducted no Gomberg inquiry:

Court: [S]ince we still have all four defendants represented by the same attorney, I want to make sure, since we may have a situation where there is DNA as to some of these defendants, but not all —

People: As well as a fingerprint of the defendant Liyao Chen.

Court: And a fingerprint as to one of the defendants. Apparently, we may be coming to a point where the defenses as to each defendant conflict with one another, and so I would like each defendant to be aware that you are each entitled to have your own lawyer. And while I am not saying that Mr. Quan currently has any conflict by representing all four of you, separate lawyers would guarantee that there is absolutely no conflict. You have defenses that are different, one from the other, and those defenses may clash. So you gentlemen will need to think about whether you are going to retain separate lawyers. We will discuss this again as we proceed. Mr. Quan you have indicated to me that you do not see a conflict at this time insofar as it relates to answering the motion on the DNA swab, is that correct?

Quan: Yes, your Honor.

Court: Okay. All right. Well, as I said, as we get somewhat closer to trial, we will be revisiting this issue. And I think that the rules in Gomberg, People v. Gomberg, and related cases would require a more in-depth inquiry by me of each of the defendants on the record. So, Mr. Quan, I know you will discuss this further with your clients, but we are rapidly getting to that point.

Quan: Yes, your Honor.

By decision dated September 14, 2011, Judge Cyrulnik granted the motion to compel DNA swabs from the four co-defendants.

On November 21, 2011, Liyao Chen's open misdemeanor case joined the present matter. In reviewing that case, Judge Cyrulnik asked Quan whether he understood that he had waived "all 30.30 time." Quan acknowledged that he had done so. See Transcript of November 21, 2011, at 2:19-23 (hereafter "November 21st Tr."). The People indicated that they were still awaiting DNA results and asked to approach the bench with Quan. Id at 3:1-13. After a discussion off the record, Judge Cyrulnick asked Quan, "Do you want to go into the hallway and explain it to all to them before I recall the case — second call." Id. at 3:14-17. When the case came back on the record, Judge Cyrulnik noted, "[b]ased on our earlier discussion at the bench, I understand that defense counsel will be requesting that he be relieved in this matter; is that correct?" Id. at 3:21-24. Quan responded, "Yes, your Honor." Id. at 3:25. Judge Cyrulnik then noted, "[b]ased upon all of the circumstances here, I think that will be appropriate." Id. at 4:1-6. The case was adjourned to December 2, 2011, for separate18-b counsel to be appointed for each of the four defendants. Id.

On December 2, 2011, Liyao Chen appeared with new counsel John Monteleone. At this appearance, the People reported that Liyao Chen's DNA had been found on the knife blade along with his fingerprint. See Transcript of December 2, 2011, at 5:15-6:2. On the same date, two other 18-b attorneys entered notices of appearance for co-defendants Qui and An Chen. Id. at 4:1-11.

On January 24, 2012, the People filed a superseding indictment, adding Attempted Murder in the Second Degree to the earlier counts. All four defendants again rejected a five-year offer. See Transcript of January 24, 2012, at 8:6-10.

On March 13, 2012, the Court rejected an attempt by Quan to reenter the case to continue representing two of the co-defendants. Specifically, an attorney named Joel Walter stated on the record, "I'm of counsel for Peter Quan, 401 Broadway. I represent two. They're from the same office." Transcript of March 13, 2012, at 2:6-9. (hereafter "March 13th Tr."). Judge Cyrulnik observed, "[w]e went through that the last time." Id. at 2:10-11. Walter noted "[t]hat's a conflict. I represent two, An Chen and Jin Zheng." Id. at 2:12-13. Judge Cyrulnik conducted an off-the-record conference and then addressed her concerns about the two defendants seeking to continue with Quan.

I believe on the last court date, if not the date before, Mr. Quan was relieved by the Court on his own request. I understand that since the last date, Mr. Zheng and Mr. Qiu have indicated that they wanted to have him back to represent them. Now, gentlemen, in the normal course of things, you are entitled to the attorney of your choice. But I'm very concerned because although Mr. Quan strikes me as a very nice man, he does not practice criminal law, and he admitted to me at the bench that this kind of case was really beyond his ability. Now, it's my opinion based on his statements to me that he would be unable to provide effective assistance in this trial.

Id. at 3:8-23. She continued, noting that the two co-defendants may feel "more comfortable with an attorney from [their] community" but that "Mr. Quan with all respect to him is not . . . an appropriate choice here" and "at a bare minimum, two of you should not be represented by the same lawyer." Id. at 3:24-4:7. Further, "having Mr. Quan represent [you] . . . presents a serious problem." Id. at 4:8-11 (emphasis added).

On a second call, Judge Cyrulnik reiterated that Quan could not return to the case because of his lack of experience:

[T]he only person whom I'm not going to permit . . . to represent you is Mr. Quan. As I said, because his statement to me was that he did not believe that he was qualified to represent you in this case. And given the seriousness of the charges, I want you to understand the risks of having a lawyer represent you who is not qualified or not experienced in criminal law . . . Once Mr. Quan takes more courses in criminal procedure and gets more familiar with the practice, I'll be happy to have him here, too.

By April 19, 2012, Philip Smallman replaced John Monteleone as assigned counsel for Liyao Chen. The following month, the Court administered Parker warnings. On June 12, 2012, the Honorable Vincent M. Del Giudice conducted Wade and Huntley pretrial hearings in the case. Prior to conducting the hearing, Judge Del Giudice explained to the defendants that they could each face up to 75 years in prison if found guilty. Following the hearings, in a written decision, dated July 25, 2012, Judge Del Giudice found that the show-up procedure identifying all four defendants had been lawfully conducted and a statement from one of Liyao Chen's co-defendants was not the product of custodial interrogation. See Decision of Vincent M. Del Giudice, J., dated July 25, 2012.

On July 30, 2012, Liyao Chen failed to appear for trial. See Transcript of July 30, 2012, at 5:3-6. Following a Parker hearing on the same day, the trial commenced in absentia. On August 10, 2012, after six days of trial testimony and other proceedings, the jury found Liyao [*4]Chen guilty of Assault in the First Degree (Count 4 - PL 120.10[1]), Gang Assault in the First Degre (Count 2 — PL 120.08), and Assault in the Second Degree (Count 16 — PL 120.05[2]).

On August 24, 2012, Judge Vincent M. Del Giudice sentenced Liyao Chen in absentia to 25 years on Counts 2 and 4 (Gang Assault in the First Degree and Assault in the First Degree), to run concurrently with each other, with seven years consecutive for the Count 16 (Assault in the Second Degree), for a total of 32 years' incarceration. Liyao Chen was also subsequently sentenced a 1-3 years' concurrent time for bail jumping. Another co-defendant, also tried and convicted in absentia, received the same sentence. The other two defendants, who were present for trial, received sentenced of 10 years concurrent on the two top counts, with five years consecutive for the conviction of Assault in the Second Degree, for a total of fifteen years' incarceration. The sentencing court explained the higher sentences for Liyao Chen and the other in absentia defendant because the two remaining defendants did not have a weapon.

On May 15, 2014, Liyao Chen was returned on the warrant and Judge Del Giudice imposed the 32-year sentence.

By decision dated December 29, 2021, the Appellate Division, Second Department, affirmed Liyao Chen's judgement of conviction and found that a "CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety." Chen, 200 AD3d at 1066.

On June 26, 2023, Liyao Chen moved by counsel to vacate his conviction on the grounds that he was denied effective assistance of counsel.

The court conducted evidentiary hearings in this matter on May 1, 2024, June 23, 2025, November 10, 2025, and November 19, 2025:

A. Testimony of Xiu Ling Xhang

Xiu Ling Xhang was born in China and emigrated to the United States with Liyao Chen, her only child, in December 2009. See Hearing Transcript, dated May 1, 2024, at 4:24-5:4; 16:15-20 (hereafter "May 1st Tr."). Her husband had come earlier to the U.S. in 2000. Id. at 5:8-14. Upon her arrival, Xhang worked in a garment factory in Manhattan's Chinatown, and moved to Sunset Park after a few months. Id. at 16:15-17, 17:8-14; 17:17-18:11. Liayo Chen was seventeen years-old when he emigrated and was arrested in this case after turning eighteen. Id. at 5:20-21; 5:24-25; 17:15-16; 19:8-14. Since arriving in the United States, he was enrolled in a public middle school, dropped out by the time of his arrest, and was working at a restaurant in January 2011. Id. at 19:2-14

Xhang learned of Liyao Chen's arrest from a phone call. May 1st Tr. at 6:1-3. She did not know who called her with this information but that her son called later to say he had been arrested but provided no information about why or what Xhang should do. Id. at 20:9-25. Xhang was very worried, and after two or three days, she received Quan's business card from Liyao Chen's three co-defendants, who came to her apartment to indicate that she needed to hire Quan to represent Liyao Chen. Id. at 6:22-7:20; 9:24-10:6; 19:18-20:4; 21:3-16. Xhang recollected that the codefendants were older than Liayo Chen, possibly in their twenties. Id. at 8:15-9:5.

Peter Quan represented three of Liyao Chen's co-defendants and introduced himself to Xhang. May 1st Tr. at 6:4-21.^[FN1] Xhang visited Quan who charged a $900 to secure Liyao Chen's [*5]release on bail. Id. at 7:25-8:4; 10:7-11. Xhang also paid $7,500 for Liyao Chen's bail. Id. at 10:17-20. Quan indicated that further representation would cost $250 per appearance, per co-defendant, or $1,000 total per court date for all four co-defendants. Id. at 10:12-16; 13:16-18.

Xhang accompanied Liyao Chen to his first court appearance after his release on bail. May 1st Tr. at 10:24-11:1. She waited outside the courtroom during the appearance because she did not know that she could be present for the proceeding. Id. at 11:5-8. Both before and after the appearance, Quan spoke with Xhang and Liayo Chen, and he advised Liyao to not plead guilty, saying "not to worry, it's a small case." Id. at 11:2-12. Quan did not discuss the case, the charges, or Liyao Chen's sentencing exposure with Xhang. Id. at 11:15-22. Liyao Chen also did not discuss the plea offer with her. Id. at 11:23-24.

Sometime after the court appearance, Xhang and Liyao Chen met Quan in his office, who again advised that Liyao Chen to not admit to anything, to "not plead guilty, it is a small case, do not plead guilty." May 1st Tr. at 12:18-13:10; see also 13:19-14:1. Xhang could not recall how many times Liyao Chen returned to court, although she did remember paying Quan $250 per appearance. Id. at 13:11-18. At some point, Xhang learned from Liyao Chen that an appointed lawyer had replaced Quan, although she never met with any attorney other than Quan. Id. at 14:2-18.

Xhang later learned that Liyao Chen received a sentence of 32 years. She testified that she would have counseled Liyao Chen to take the earlier two or five year offers, if she had known about the possibility of such a far longer sentence. May 1st Tr. at 14:19-15:12; see also 15:13-15 ("We were very close. We were in a very good place.") She was unaware of Liyao Chen having any gang affiliations. Id. at 19:15-17.

B. Testimony of Peter Quan

Peter Quan said that he was an attorney who graduated, in 2007, from Queens Law School, "out of Queens College," May 1st Transcript at 23:4-11.^[FN2] After graduating, Quan opened a law office practicing "criminal immigration, civil litigation, and divorce. General practice." Id. at 23:12-15. His training consisted of work as a paralegal "in law firms" with criminal defense, civil litigation, and immigration practices, including "Wilson and Associates out of Broadway" interpreting Mandarin to English for "the lawyer." Id. at 23:23-24:10. Quan said that he worked as a legal intern and a paralegal, although his testimony on this point, and many others, was unclear. See id. 24:11-25:5.

As for Quan's legal practice, for a year or two, there appeared to be another attorney in his office who could handle felony cases. Id. at 25:6-17 ("The work in my office there is, for example, criminal charges less serious like violations I will handle it if there is some felony charges or serious charges, the other lawyer will work on the case.").

Quan never clarified the years he worked with this felony attorney. He was also [*6]continually evasive about his criminal law experience in general. He said that he had handled a homicide arraignment but referred the remainder of the case to another "more experience[d] lawyer." May 1st Tr. at 32:15-24. Other than that, Quan's experience was scant. He also handled "[s]ome small violations, misdemeanor of practice massage without a license. Yeah, [these] kind of small cases I handled . . . by myself." Id. 32:25-33:4. Notably, he was evasive in answering whether he had handled any felonies other than the case for Liyao Chen and three his co-defendants. See id. at 33:17-34:6.

The Court: Did you ever handle any other felony cases other than [this] case and these four individuals?

A: Yes.

Q: What cases were those beside the homicide?

A: Do you also want included the three other defendants?

The Court: No.

Q: No.

A: There — no, I cannot remember. In that year, I cannot remember.

Under questioning by Liyao Chen's counsel, Quan prevaricated further on this point. May 1st Tr. at 37:1-14.

Q: And you told me that you hadn't handled any felony cases since then, correct?

A: I do not remember.

The Court: Did you handle any felony cases since this case?

A: I cannot remember my answer right now. It's a call from a stranger. I am nervous —

The Court: I am asking you now, from 2011 until now, from the time you handled these four individuals, the felony charges, did you handle any other felony cases?

A: Possibly.

The Court: Possibly. You don't recall?

A: Yes.

On cross-examination by the People, Quan admitted that Liyao Chen and his co-defendants case was his "last violent felony" case, May 1st Tr. at 55:18-56:12, but that he had "dealt" with "lots of [criminal] cases" including petit and grand larcenies. Id. at 56:13-23. His last criminal case was a violation, in Queens, approximately seven months prior to his present testimony. Id. at 56:25-4.

Quan ultimately admitted to handling only approximately twelve non-felony criminal matters prior to Liyao Chen's case.

Q: From 2008, from when you were admitted to the Bar to 2011, how many criminal cases had you handled?

A: About thousand?

Q: A thousand?

A: About a dozen. 12.

Q: About a dozen. Most of those were — they were all like misdemeanors and violations, correct?

A: Yes.

Q: You said that in the period [prior to this case] you had 12 cases that were either [*7]misdemeanors or violations?

A: Yes.

Q: So you weren't just representing people on violations?

A: And misdemeanors.

As for Liyao Chen's case, Quan remembered some facts, but "not all," and in this Court's view, he went out of his way to provide unhelpful or obfuscated testimony. See e.g. May 1st Tr. at 25:21-12.

Q: Do you recognize anyone in this courtroom?

A: What do you mean, like the lawyers?

Q: Not the lawyers here. Do you recognize the defendant, Mr. Quan?

The Court: Are you familiar with an individual named Liyao [Chen]?

A: Your Honor, I remember the name, but I cannot remember the face after so many years.

Q: Do you remember anything about his case?

A: What do you mean?

Q: Do you remember the facts of this case?

A: What are the facts? What are the facts you refer to?

The Court: Your question is, do you remember any facts of the case?

A: Yes, some facts, not all.

What Quan did remember on questioning by Liyao Chen's counsel was, at best, unclear, and at worst, self-serving. Quan said that the case started in June, or the early spring of 2011, with the posting of bond for Liyao Chen's three co-defendants. May 1st Tr. at 26:13-24. In fact, Quan first appeared in the case on the 180.80 date, January 28, 2011, but only for Liyao Chen's three co-defendants. See Notices of Appearance, dated January 28, 2011.

Quan said that Liyao Chen's mother called about her son and "she also needed my help posting the bond at midnight," May 1st Tr. at 26:25-27:13, although Quan was unclear about how that came about. As an initial matter, Quan testified that Liyao Chen's mother learned of Quan's phone number from a relative of the other three co-defendants. May 1st Tr. at 75:9-19. Then, he said that could not recall how the other co-defendants contacted him but that it was through Liyao Chen:

Q: How did the other defendants get to you?

A: I don't know.

Q: You have no idea?

A: Liyao called me.

Quan stated that approximately one month later the four co-defendants "went up to my office and they hired me for appearing in criminal court." May 1st Tr. at 28:2-12; 58:11-19. "[E]ach of them will pay me 250, $250 for each of them for each appearance before trial," and in the event of a trial, "[an]other lawyer . . . will do the trial [and] the legal fee will be much higher than that." Id. at 28:13-17. If Quan is to be believed, he filed notices of appearances for Liyao Chen's three co-defendants on the 180.80 date without being retained by them. See id. at 75:24-76:10; compare Notices of Appearance, dated January 28, 2011.

Quan gave vague testimony regarding the People's initial jail offer to Liyao Chen. As [*8]Quan explained it: "I cannot remember the date of the first appearance I go with Liyao[.] At some point the DA, the District Attorney, you know, made an offer of two-year jail time and two years, three year post release supervision, that kind of offer." May 1st Tr. at 28:19-28:22. Then, he testified, "[b]ut, the DA's offer is only one to two offer to Attempt Robbery in the Second Degree." Id. at 29:6-8.

After stating having received two different offers, Quan proceeded recalling the District Attorney's offer and conferencing with Liyao Chen:

That morning I went into the Court [and had] a conference with [the] District Attorney first. They said, yes, there is an offer. Attempt Robbery in the second degree, two years jail time and some supervision * * * After I conference with the DA, I and Liyao [ ] went outside to the lobby and I told him here's the deal. I learned from the DA for you, it's two year[s] jail time and in the document there is a list of charges against the defendant . . . I explain[ed] that to him in the lobby and in Mandarin Chinese.

Quan testified that Liyao Chen rejected the offer due his immigration status and other concerns.

He told me that he does not want to take the offer for some reasons. First, he did not want to go to jail. Second, I am an immigration lawyer. I also told him the consequences of felony convictions after jail, that ICE, the immigration enforcement, will pick him up and send him back to China and then he said that also he does not want to be deported back to China.

The background is when there is a conviction felony is deported back to China is also a felony in China. They have some kind of law, more harsher [sic] punishment for convicted felons in China.

May 1st Tr. at 29:10-20. Quan said he had "read the Chinese news," regarding the collateral consequences of removal to China, and that "there are a lot of them on the website. I did a Google search. Several articles if not hundreds of them." Id. at 29:23-31:1.

Quan insisted that Liyao Chen understood counsel's advice and the disregarded the risk of not pleading guilty. May 1st Tr. at 31:3-14.

And let me finish. After I explained to Mr. [Chen], to the defendant, about the offer and in order to take the offer there is also a risk. From this charge alone it can be if convict [sic] was the risk I told to him it can much two to seven years for this charge alone. No mention of the other charges listed there on the paper. I told him the risk and I told Mr. [Chen], you are the master, you tell me what to do. According to the professional rule, as a lawyer, you are the master. I am working for you. You tell me what to do. Whether to take it or not and he said, no, I don't want to go back to China and he wanted to voluntarily take the risk for future convictions for more years in jail time.

Quan testified the prosecution made a second offer two or three months later. May 1st Tr. at 31:15-18. He could not remember details of the second offer, "Robbery in the First Degree or something like that," but recalled "[t]his time [it] is a five years in jail . . . and some more years of supervision after jail time." Id. at 31:15-24. Quan said that after a "conference with the DA," he explained to Liyao Chen that he asked for less than two years, but that the "DA did not agree, they want a five-year [sentence]." Id. at 31:25-32:3.

Quan stated that he again reviewed with Liyao Chen the risk that he was taking.

I also told him the risk again. I printed out all the penal law pages from the relevant section of the penal law. I explained to him in Mandarin, if you do not take this, for this charge alone it's if you are convicted it can be five to 25 years for this charge alone. It can be more than 25 years if other charges were also convicted of you [sic]. I explained to him.

May 1st Tr. at 32:4-32:9. Quan explained to Liyao Chen that he would do whatever the client wished. Id. at 32:10-11 ("Then again I told him, you are the master, I am working for you. You tell me what to do."). He said Liyao Chen rejected both the offer and further discussions. Id. at 32:11-14 ("I need approve [sic] to talk to the DA again and to the judge and he said, no. For the simple reason without him taking a two years it's obvious that he tell me not to take a five-year jail time, in the hallway.").

Quan's testimony turned hostile and erratic at points. For example, he refused to speak with Liyao Chen's present counsel prior to the hearing and accused Liyao Chen's current attorney of trying to "trap" him and "breach" the criminal justice system. May 1st Tr. 35:10-16. When asked to explain himself, Quan asserted, "[a]ll your allegations against me is frivolous. There are no ground for your allegations against me . . . You do not have any ground for your allegation against me." Id. at 35:17-24. Then, when questioned about whether Quan had spoken with the District Attorney, he said that he had asked them for documents because counsel did "not give the completed documents." Id. at 35:25-36:2. When asked whether Quan had ever requested documents from counsel, he replied that counsel was Quan's "enemy" and that her documents would be worse in some unexplained fashion. Id. at 36:3-5.

Q: Did you ever ask me for documents?

A: Because you are my enemy, I do not see where your documents is worse, it is trustful [sic].

On questioning by the Court, Quan admitted that he had, in fact, spoken with counsel on the telephone on a few occasions prior to the hearing. May 1st Tr. at 36:6-12.

Q: You didn't even pick up the phone what I called, did you?

A: I called —

The Court: Did you pick up the phone when she called.

A: Yes. First time. The first few times I picked up.

Q: And you said that you didn't remember anything about the case; isn't that true?

A: A stranger called me about a case 12 years ago, in a few seconds what an answer can be.

The Court: So the answer is, yes, you didn't remember anything about the case?

A: In a few seconds after I picked up the call I said, no.

The Court: You told her you didn't remember anything about the case?

A: Yes, after I picked up the phone. Because I have no time to recall what happened under the name of the client, 12 years ago, in such a short time.

Quan's testimony about his dealing with the District Attorney prior to the hearing was [*9]also confounding with shifting answers. May 1st Tr. at 37:15-38:4.

Q: Did you meet with the district attorney to prepare for today's hearings?

A: I ask[ed] for documents.

Q: I asked you whether you met with them to prepare for today's hearing.

A: I want[ed] my testimony to be video or telephonic. I went three times here I only have the chance to testify.

The Court: I am going to strike the answer as non-responsive. One more time Counsel.

Q: I am asking if you met with any member of the District Attorney.

A: Yes.

Quan was also evasive about what documents the People provided him prior to his testimony his hearing testimony.

Q: And, what documents are they?

A: The minutes. Mostly are minutes from the Court proceeding.

Q: Do they also include the charges?

A: Yes.

Q: Do they include how much time Mr. [Chen] can get for those charges?

A: I — first time when the defendant went to me to my office he bring the cases on the paper to my office and I explained to him.

Q: I am asking you —

The Court: The answer is stricken as non-responsive. Ask the question. Answer her questions. Answer the questions that she is asking you, not what you want to say, what she is asking you. Do you understand my instructions?

A: Yes, your Honor.

The Court: Next question.

* * *

Q: . . . Mr. Quan, are there any penal law sections included in those minutes, in those papers that the DA sent you?

A: You mean the court minutes?

Q: No, I am asking you about penal law sections — do you know what the penal law is?

A: Yes.

Q: You talked earlier about the penal law. Are there the applicable Penal Law section for the charges against [Liyao Chen]?

A: Yes.

Q: In those papers that the DA sent you.

A: Yes.

Q: And, you reviewed those?

A: Yes.

Quan's testimony about the reasons for his being relieved from representing Liyao Chen and his three co-defendants were also both evasive and at significant variance to the court record. See May 1st Tr. at 42:4-43:11. For example, Quan testified that his withdrawal had nothing to do with his competence to handle the case. See 42:4-43:15.

Q: Did there come a time that you were asked to be relieved in this case, Mr. Quan?

A: Yes.

Q: What do you remember about that?

A: Either around November 2011 —

The Court: She asked if you were relieved at some point, you said yes. She asked what you recall about that, you said, you recall the time November 2011. What else, other than the time that you were relieved, do you recall about being relieved?

A: Yes, the reason is later the Court said I shouldn't—issued an order I shouldn't be representing all four individuals.

The Court: The Court said you shouldn't be representing all four individuals?

A: Yes, your Honor.

Q: And that was the reason you asked to be relieved?

A: Second reason mostly the important I strongly suggested him to take the offer, either the two-year jail time or five-year jail time [sic]. I suggested him to take the offer, offer one, offer two. He rejected it. He disagreed with me. I ask for relief from the Court.

Q: Because your client disagreed with you?

A: Yes.

Q: And, what about the other clients, did you ask to be relieved from their cases?

A: Yes.

Q: Any why did you ask to be relieved from their cases?

A: The Court said I should not represent all four of them together, at the same time.

Q: How did you advise those other defendants?

A: The same.

Q: And they all rejected your advice?

A: Yes.

Despite Quan's claim, that he was relieved due to simultaneous representation, the record is clear that Judge Cyrulnik found that "[Quan] does not practice criminal law, and he admitted to me at the bench that this kind of case is really beyond his ability. Now, it's my opinion based on his statements to me that he would be unable to provide effective assistance of counsel." See March 13th Tr. at 3:8-23. Quan insisted that he only told the Court he was not competent to handle this case at trial, id. at 51:12-23. On cross-examination by the People, Quan said again that he was relieved because Judge Cyrulnik said it was not a good idea for Quan to be representing all four defendants, id. at 70:16-71:2, and that he felt that his level of understanding of criminal law was not sufficient for going forward with a trial. Id. at 71:3-5. However, Quan's withdrawal request happened before the pretrial hearings were ever ordered. Moreover, Judge Cyrulnik never issued an order that Quean should not be representing all four individuals. See id. at 3:8-20 ("Mr. Quan was relieved by the Court on his own request."); cf. id. at 42:4-43:15 ("the Court said I shouldn't — issued an order I shouldn't be representing all four individuals.)

Quan's testimony about Liyao Chen's misdemeanor case was also troubling. He recalled nothing about the matter other than Liyao Chen's mother contacting him to about her son's new arrest and getting him released. See May 1st Tr. at 43:16-44:7-13; 44:20-21; 45:1-3.

Q: What discussions did you have with Mr. [Chen] about the case?

A: Can you — what do you want?

Q: I am asking what discussions, what did you say about the case to him.

A: I cannot remember now.

* * *

Q: Was there a plea offer in that case?

A: I cannot remember.

* * *

Q: How long did you speak with him?

A: I cannot remember. I ask him about it 30 minutes to 1 hour, but I cannot remember right now.

Aside from his failure to recall anything of substance, Quan's lack of capability as a criminal defense attorney became pronounced when questioned about having waived speedy trial time on the misdemeanor case. May 1st Tr. at 45:15-47:6.

Q: Do you recall that on the misdemeanor case, there case a time when the Court said that you understand you have waived all of your 30.30 time?

A: I can't remember.

Q: Do you know what 30.30 time is?

A: I think in the Court, I explained to my client.

Q: I am asking do you know that 30.30 time is?

The Court: What is 30.30 time?

A: It's some procedure in the early stage of the case, but I can't remember, I'm sorry.

Q: So the Court said to you, do you understand you waived all of your 30.30 time and you said, yes, your Honor; do you recall that?

The Court: Do you recall waiving 30.30 time?

A: It's for the misdemeanor case, right?

Q: Yes.

A: Yes.

Q: You recall waiving your client's 30.30 time?

A: Yes.

Q: Do you have any idea what that meant in terms of the case?

A: For the violation case, my — I want to get a better offer for the violation case only.

Q: It was a misdemeanor case, Mr. Quan?

A: Yes.

The Court: So what does it mean that you waived 30.30 time?

A: We can have a trial offer sooner for my client.

Q: I'm sorry?

A: Have a trial or have a better offer for my client.

Q: You had no idea what 30.30 time meant, did you, Mr. Quan?

A: No.

Q: So when the Court to you, do you understand you have waived all of your 30.30 time, and you said yes, your Honor, you had no clue what she was talking about, the Judge, correct?

A: At this moment I cannot remember, you know.

Q: But, as of this moment you have no clue what 30.30 time is?

A: No.

On cross-examination by the People, Quan attempted to rehabilitate his lack of [*10]knowledge of CPL § 30.30, although his understanding of the concept continued demonstrate a lack of competency:

Q: Do you recall if — now you say here today you don't remember 30.30 time; do you know if you even knew it back then in 2011?

A: Yes, it's some kind of speedy trial and if the defendant waives, they waive some rights and protection. If the DA does not go beyond the time limit for the case, the case will be dismissed, but in order to get a better offer, it's a tradeoff to get a better off for my client.

Q: So you were waiving it so you can try to get a better offer on the Misdemeanor and the felony case for your client?

A: Yes, I waive it.

But Quan's re-direct examination on this point further compounded concerns with his testimony because it appeared that he had researched CPL § 30.30 on his phone during an extended break in the court proceedings between his direct and cross-examinations. See May 1st Tr. at 72:19-23.^[FN3]

Q: Mr. Quan, do you have your phone on you?

A: And did you make a call to someone to find out what 30.30 was when you went out?

Q: No, I checking my phone.

Id. Quan he denied that he done so, id. at 72:24-73:3 and 73:8-10, but his explanation about his recollection of CPL § 30.30 bordered on the bizarre. "I didn't do [a] criminal case for a couple of months, sometimes I needed to refresh and think deeply more and more and more." Id. at 73:3-7; see 74:5-9 ("After, seeing over and over and over again I refresh my memory in my brain. I didn't do it for many months. I refreshed and I took off.").

By way of comparison, on cross-examination by the People, Quan's testimony became strikingly cogent and self-serving. For example, Quan now recalled the only documents sent to him by the ADA were minutes, see May 1st Tr. 57:13-15, that Liyao Chen's bond was $7,500, id. at 58:1-5, that his first meeting after posting the bond was with Liyao Chen and his three co-defendants, id. at 58:11-19, that they brought him a copy of the indictment and he made copies, id. at 58:20-23, that he explained the charges to them in Mandarin, id. at 58:24-59:2, and that he printed out and read to them the relevant sections of the penal law, id. at 59:3-5.

Q: Were you aware of the charges that this defendant and his co-defendants were facing?

A: They went to my office and bring the indictment papers and showing them to me and make a copies of the paper.

Q: Now, once you had the charges that they were facing, you explained to this defendant, as well as the co-defendants what the charges were in Mandarin?

A: Yes.

Q: You printed out the penal law section and you read it to them, right?

A: Yes.

Quan also now recalled speaking with Liyao Chen about the consequences of his charges, that he had learned of Liyao Chen's immigration status, and discussed with him the risk of permanent deportation and further punishment in China. May 1st Tr. at 60:10-61:8. Quan also stated that Liyao Chen did not want to be deported, and both he and his co-defendants did not want to go to prison. Id. at 61:9-16.

Quan also recalled speaking with Liyao Chen's mother, in Mandarin, about the charges. May 1st Tr. at 62:13-63:9.

Q: Now, you explained to this defendant's mother that he was also facing robbery charges, correct?

A: Yes.

Q: Robbery in the First Degree, right?

A: Yes.

Q: Robbery in the Second Degree, right?

A: Yes.

Q: Robbery in the Third Degree, right?

A: Yes.

Q: You explained to this defendant's mother that he was also facing Assault in the First Degree charges, correct?

A: Yes.

Id. Also, Quan now recalled discussing Liyao Chen's potential immigration consequences with his mother, and that she expressed concern about Liyao Chen obtaining a green card and him to go to jail, id. at 63:18-64:2, and that he translated relevant penal law sections into Mandarin for her. Id. at 63:10-20 ("When she went to my office I have the chance to explain and translate the Penal Law in Mandarin.") He also discussed that her son's immigration consequences with additional penalties back in China, id. at 68:6-12, that her son's maximum jail time was "minimum up to 70 years, up to 70 years or more than 70 years," because there were multiple victims, id. at 66:18-67:8, that he "strongly recommended them to take the offer, either the first offer of the second offer," and that he did not tell them to reject the offers because a lack of evidence. Id. at 67:15-21.

Quan also now recalled that Liyao Chen and his three co-defendants said they had "injured someone," that "the four of them injured someone and tried to get a purse, money from someone, something like that," although he could not remember the "exact words." May 1st Tr. at 64:3-13. He also now recalled being told that two people had been robbed and stabbed, that Liyao Chen was the stabber, that the police had recovered the knife he used, and that another person had not been arrested, although Quan could no longer remember the name of the individual. Id. at 64:14-65:2; 65:19-21. Quan repeated that he advised the defendants to plead guilty, but they did not want to do so because the immigration consequences, and Liyao Chen said he did not want to go to jail. Id. at 65:2-11.

Quan denied ever telling Liyao Chen that the case was "no big deal" because Chen had admitted to Quan that Chen was the stabber. May 1st Tr. at 65:12-15. He also said that he never told Liyao Chen that the case was "small potatoes," id. at 65:16-18, though no witness claimed Quan had ever used the term. Quan stated he did "not even know what the word [sic] means." Id. Quan also denied telling Liyao Chen that the case was "very petty," id. at 67:9-11, though, again, no witness had attributed that phrase to Quan. The People never asked Quan whether he described Liyao Chen's criminal matter as a "very small case," as claimed by Liyao Chen and his [*11]mother. See May 1st Tr. at 14:13-18; 15:17-16:9; 16:22-17:2; 50:1-4.

Quan also said that Liyao Chen never asked him why the prosecutor's offer increased from 2 to 5 years, although he blustered on this point. May 1st Tr. at 69:6-21.

Q: Did he ever ask you, well why did it go from two-years to five-years?

A: Yes, as a lawyer for my client I want to reduce less than two-years then I may pursue of him to take the offer less than two-years, but five-years he, defendant Liyao rejected.

Q: Strike that answer as non-responsive.

The Court: Answer the question. That was a non-responsive answer . . . Did he ask you why the offer went from two-years to five-years?

A: No.

The Court: He never asked that?

A: He did not ask for the reason, no.

Id. Under further questioning by the Court, Quan said that Liyao Chen's mother and father also never asked Quan why the offer had gone up from two to five years in prison, although he could not recall seeing the father either at court or at his office. Id. at 69:25-70:15.

Quan also embellished his consultation with Liyao Chen and his mother after the District Attorney's two-year offer, now stating that he also copied the relevant penal law sections for them, translated them into Mandarin for the client and his mother, and placed the copies into a folder in preparation for the following day's appearance. Id. at 79:12-81:14.

Q: When was it — I am trying to understand. When was it that you printed out the penal law?

A: In my office before I went to the courtroom.

Q: So you went back, you went from the courthouse —

A: No.

Q: To your office?

A: The day before. I print out in my folder.

Q: Before you met with the prosecutor?

A: Yes.

Q: So you knew what all of the charges were?

A: Yes.

Q: And you explained that to the defendant in the courthouse?

A: Yes.

Q: When was that? When did you do that in relation to when the Court proceeding was [?]

A: First, I have a conference with ADA to ask her whether the ADA has an offer. It was said that there is an offer of two-year jail time. I ask the defendant out of the courtroom to the lobby and explained the offer and the risk and the consequences of not taking the offer and then I ask her even though I — the defendant didn't take the offer. I have to listen to him, the defendant, whether he should take the offer or not.

Q: I am trying to understand —

A: I listen to the defendant.

Q: I am trying to understand —

The Court: You said that you printed out the penal law sections, correct?

The Witness: Yes.

The Court: And you said that you interpreted and translated them for the Client and the [*12]client's mother, correct?

The Witness: Yes.

The Court: And you did that the day before the two-year offer being made?

The Witness: Yes, I have all the print out, all the copies in my folder.

Quan also said that he declined the request of two co-defendants to continue with the case, May 1st Tr. at 49:10-18, although offered no explanation why another attorney subsequently tried to re-enter the case as counsel to him. See id. at 49:19-51:11. The best Quan could offer is that the other attorney's actions on Quan's behalf were "[m]aybe a confusion or something." Id. at 50:17-51:11.

Q: If a Joel Walter said, I am of counsel for Peter Quan, I represent two defendants, you didn't have any knowledge, is that what you are saying?

A: No.

Q: You never knew. But, you are saying these two defendants went to your office and they said they wanted you to represent them?

A: Yes.

Q: And you told them you couldn't?

A: Yes.

Q: But this Joel Walter ended up in Court saying that he was of counsel to you?

A: Maybe a confusion or something.

Quan concluded his questioning by the People with other self-serving details, insisting that Liyao Chen and his three co-defendants were inseparable from each other, despite Quan wanting to interview them separately, and warning them during their very first meeting to have separate counsel:

Q: And all of the defendants came to your office, you are saying, at one time?

A: Can you ask it again?

Q: Are you saying all of these defendants came to your office at one time?

A: For the first time four of them went to my office.

Q: Did you ask each about the facts in the case?

A: Yes.

Q: And how did you do that?

A: I called them one by one.

Q: Where did the others go?

A: They [were] seated together. They did not want to talk to me one on one with me [sic]. Four of them wanted to talk to me together.

Q: So they all spoke to you at the same time?

A: Yes, in turn.

Q: Did you ever consider that you might have a conflict of interest representing four defendants?

A: Yes. First time when they went into my office I tell them each of you should have separate counsel to represent you.

Q: And what did they say?

A: They said that four of them only wanted to retain me four of them [sic].

Finally, Quan stated that he did not do any prior research for the present proceeding regarding ineffectiveness of counsel, although he had taken "a lot of CLE's [regarding] how to work responsibly for a client and I listen to what the client really want[s]." Id. at 84:13-17. He also took no criminal law related CLE's in the past two years, "but after 2008 I take a lot." Id. at 84:18-20.

Quan concluded by stating that Judge Cyrulnik finding that the case was beyond his abilities was "a misunderstanding." Id. at 84:21-85:2. He admitted to being relieved in the middle of the case, see id. at 85:3-10, but continued to insist that it was only due to concerns with simultaneous representation, rather than his lack of criminal experience or understanding about waiving speedy trial time under CPL § 30.30. Id. at 85:11-86:2. In his final defense, Quan stated that the Court had already reviewed the conflict issue with Liyao Chen and his co-defendants, and that he had also warned them about this issue at their first meeting, but they rejected this advice. Id at 86:3-19

C. Testimony of Liyao Chen

Liyao Chen testified, through a Mandarin interpreter, that he was born 1992, in the Changle area of Fuzhou, the capital of Fujian Province, China. See Hearing Transcript, dated November 10, 2025 at 11:17-18 (hereafter "Nov. 10th Tr."). In December 2009, at the age of 17, he emigrated to the U.S. with his mother, and to join his father who was already here. Id. at 11:20-12:5. Liyao Chen was taught English in school and knew a few words when he moved here, but he "really didn't know how to speak English at the time." Id. at 12:6-12.

Liyao Chen was arrested in 2011, when he was eighteen years old, along with three co-defendants. See Nov. 10th Tr. at 12:13-22; 50:5-6. He had never been arrested before and knew nothing about the American criminal legal system. Id. at 12:23-13:2; 50:7-9. Liyao Chen met Quan after Quan secured his release on bail. Id. at 13:3-10. Afterwards, he met with Quan along with his co-defendants. Id. at 13:11-13:16. Quan told Chen and his co-defendants that "nothing was going to happen with you in this case." Id. While Quan never "really asked [Liyao] anything," Liyao Chen asked "a fruit knife in [his] pocket." Id. at 13:17-23. Liyao Chen also denied using the knife to stab anyone or making any incriminating statement to Quan that Liyao Chen was the stabber. Id. at 13:19-14:12.

Liyao Chen said that Quan asked about the case, and afterwards said that "this is a very small case and nothing is going to happen." Nov. 10th Tr. at 14:13-18. Quan did not discuss Liyao Chen's sentencing exposure and provided no paperwork to him. Id. at 14:19-15:3; 18:23-24. Liyao Chen said that he went to court with Quan, who charged $1,000 for the four defendants per appearance, and that his parents did not accompany him. Id. at 15:4-16. The first time Liyao Chen returned to court, the People extended a two-year offer, but Quan told him "don't plead guilty, it's a very small case." Id. at 15:17-16:9. Liyao Chen recalled that Quan informed him "if you plead guilty, everybody has to plead guilty," but that some of them were not U.S. citizens. Id. at 16:10-21. Quan did not ask Liyao Chen how he wanted to proceed; rather he said, "it's a small case and nothing is going to happen." Id. at 16:22-17:2; 50:1-4.

Liyao Chen's parents met Quan once or twice, but Liyao Chen did not recall the number of times, nor whether Quan discussed the plea offer with them. See Nov. 10th Tr. at 17:3-8. Liyao Chen never spoke with his parents about it. Id. at 17:9-11; 18:10-13.

When the People made a five-year offer, apparently before Liyao Chen gave a DNA sample, Quan again advised that "this is a very small case" and "the prosecutor didn't have much evidence." Nov. 10th Tr. at 18:19-19:4. Liyao Chen received a 32-year sentence. See id. at 17:25-[*13]18:1. Liyao Chen asked Quan about deportation and was told that a sentence of more than two years would result in removal from the United States. Id. at 19:7-12. Quan provided no information about whether Liyao Chen would face additional punishment in China. Id. at 19:13-15.

Liayo Chen said that Quan never suggested that Liyao Chen have separate representation, rather it came only after the Court suggested it. Nov. 10th Tr. at 19:16-20:3. Liyao Chen confirmed that if he knew his sentencing exposure, he would have accepted the two- or five-year offers. Id. at 20:4-8. He said that he only spoke with his attorney Phillip Smallman briefly outside the courtroom where his case was heard about the five-year and then a seven-year offer that Smallman advised Liyao Chen to accept. Id. at 20:9-21:10. He also relied heavily on lawyers advising him about his situation. Id. at 50:10-13. Liyao Chen rejected the offer because he "felt like seven years was a long time." Id. at 21:11-21. He testified that Smallman never asked why he was rejecting the seven-year offer, nor about Liyao Chen's prior discussions with Quan. See id. at 22:4-16.

On cross-examination, Liyao Chen said that he never asked Smallman about the offer because he did not understand the law. Nov. 10th Tr. at 23:1-24. He also never discussed the two-year offer with his parents, even though that amount of time scared him a bit. Id. at 23:25-24:18. Liyao Chen also never asked Quan about the increased offer from two to five years, nor did Quan explain it to him, even though Quan said from the beginning that nothing would happen to Liyao Chen. Id. at 24:23-25:17. Liyao Chen also denied being in a gang, stabbing any victim, or knowing who was responsible, although he admitted participating in the fight. Id. at 25:18-26:16; 27:17-28:22. Liyao Chen also declined to implicate any of his co-defendants in the attack, although admitted that they had become friends approximately one year after Liyao Chen emigrated to the United States. Id. at 29:11-30:1. He also said that he had been carrying a fruit knife for protection, id. at 30:14-31:10, and that the knife was in the wrist area of his coat, then deposited in the police car where he was placed after his arrest. Id. at 31:11-23.

Liyao Chen recalled being held on Rikers Island in a facility for people younger than eighteen years old and that he had recently turned eighteen at the time of his arrest. Nov. 10th Tr. at 32:9-14. Quan bailed him out after one or two days. Id. at 32:14-20. He first met with Quan along with his three co-defendants, and after explaining what happened, the lawyer told him that the case was "nothing," "a very small case." Id. at 32:24-33:1; 33:20-34:6. Quan continued with this advice following Liyao Chen's first Supreme Court appearance. Id. at 36:22-37:4. Liyao Chen did not know the charges against him at that time or who the lawyer was appointed to represent him at his initial appearance. Id. at 33:2-10. He also knew nothing about the American legal system, was uninterested in school, and did not speak much English. Id. at 34:7-15. He was scared and had no recollection of Quan discussing with him and his co-defendants the charges or possible penalties. Id. at 35:1-25. He would go to court with his co-defendants and Quan, and Liyao Chen never spoke about the charges or offers with his parents. Id. at 37:11-20; 39:13-18. He also did not speak with his co-defendants about why the prosecutor's plea offer was increasing. Id. at 39:7-12.

After about two months, Quan informed Liyao Chen that he would be deported back to China if he was incarcerated for more than two years. Nov. 10th Tr. at 37:21-25; 38:15-17. Liyao Chen said that he did not fear being deported back to China because he had family there, and that he was unaware whether he would face additional penalties there or be barred from re-entry into the United States. Id. at 18-22; 38:1-11; 49:23-25. He fled to Toronto out of fear of losing his [*14]case at trial because of eyewitnesses. Id. at 38:23-39:5; 39:19-25; 44:22-45:5. Liyao Chen also heard from people, including Smallman, that, once the case passed the Grand Jury stage, he was likely to lose. Id. at 41:9-19. He also recalled being told by an "older white" judge "with a beard," presumably Judge Del Guidice, that he could face a maximum of 75 years, although he did not ask Smallman about this detail. Id. at 42:15-43:15. Liyao Chen also did not discuss with Smallman the reason for rejecting the seven-year offer. Id. at 47:23-49:6.

Despite having no issue with living with either his grandmother or in China, Liyao Chen lived by himself in Toronto, worked at a cousin's restaurant, and received some support from his parents, although he did not want to not tell them that he had fled out of fear of losing his case. Nov. 10th Tr. at 45:6-46:19. Liyao Chen had previously met his Toronto relatives once or twice in China, although he did not know them very well. Id. at 50:15-19. His parents visited him, and he never returned to New York, or contacted his co-defendants, prior to being arrested in Toronto after a year-and-a-half. Id. at 46:20-47:18. He only found out he had been convicted and sentenced after his being returned to New York. Id. at 47:19-22.

D. Testimony of Ling Chen

Ling Chen, the father of Liyao Chen, was born in China and was smuggled into the U.S. in 2000. See Hearing Transcript, dated June 23, 2025, at 4:6-18 (hereafter "June 23rd Tr."). His wife and son arrived in the U.S. in 2009, after she was granted asylum for persecution because the Chinese government forced her to have an abortion. Id. at 4:22-5:7. Liyao Chen was seventeen when he arrived here. Id. at 5:8-9.

Liyao Chen was arrested in the current case a short time after his arrival. June 23rd Tr. at 5:14-15. Ling Chen learned about his son's arrest when a Chinese-speaking individual from a police station called his home in the morning. Id. at 5:16-18; 12:12-17. He and his wife went to the police station but were unable to secure their son's release, although eventually an attorney assisted in releasing him. Id. at 5:19-24.

Ling Chen found Quan, his son's first lawyer, though the three people with whom his son was arrested. June 23rd Tr. at 5:25-6:2; 12:17-22. These individuals came to Ling Chen's home and reported that Quan had gotten them released on bail. Id. at 6:3-5. Thereafter, Ling Chen and his wife met with Quan "to ask him to help with the bail." Id. at 6:8-13; 13:10-15. Quan charged them a $900 fee to help the Chens post bail for their son. See id. 6:14-20; 13:16-23. Quan did not discuss the charges, only that "I'll get him bailed out." Id. at 14:13-15. Ling Chen admitted that he did not understand enough to ask about the charges, and that he did not press his son for details about the case. See id. at 14:23-15:14. He also knew nothing about the American legal system at the time and depended on Quan to explain the matter. Id. at 21:7-11.

After securing his son's release, Ling Chen returned to Quan's office and retained him for $250 per court appearance. June 23rd Tr. at 6:24-7:6. Quan told Ling Chen that he would be simultaneously representing Liyao Chen's three co-defendants, so Quan would be paid a total of $1,000 per court appearance. Id. 7:7-16. Quan also advised Ling Chen that his son's case was "'okay . . . a small matter," and that his son and his co-defendants "don't have to plead guilty." Id. at 7:17-19.

Quan repeated this advice on a second occasion to Ling Chen, Liyao Chen, and his three co-defendants. See June 23rd Tr. at 7:25-8:6 ("[T]his is a small matter and . . . these young men do not need to plead guilty"); 14:23-15:3. And again, on a third occasion, Quan reiterated that "it's fine. This is a minor matter. He will take care of it. You don't need to worry about it." Id. at 8:7-12; 15:22-16:4. Ling Chen said that Quan never discussed plea offers with him, and that his [*15]son did not mention plea offers either. See id. at 8:13-17. Ling Chen also believed that Liyao Chen was unaware of any plea offer at the time. Id. 8:16-20. Quan learned from others that Liyao Chen had changed counsel to a "government attorney." Id. at 8:21-25. Ling Chen never met that lawyer and was unsure about the outcome of his son's case. See id. at 9:1-5. He only paid for the first two of the appearances and did not know how many times Liyao Chen returned to court, because he was working elsewhere and did not have much contact with his son. Id. at 16:5-17; 16:20-24.

At some point, Ling Chen learned about the charges, although he did not know if the source of the information was his son or his wife. June 23rd Tr. at 18:2-7. Ling Chen knew that Liyao Chen's case was ongoing when his son fled to Canada, and that he and Liyao Chen's mother visited their son there on one occasion. Id. 18-8-17.

At the outset of his case, Liyao Chen was a teenager with problems obeying his parents. June 23rd Tr. at 20:6-17. Ling Chen later learned that Liyao Chen had been sentenced to 32 years, which included additional time for fleeing to Canada. Id. at 9:13-24.

Ling Chen stated that Quan did not discuss his son's charges or potential exposure. June 23rd Tr. at 10:25-11. Quan also never discussed his potential conflict from joint representation. Id. at 11:8-11. Quan also did not discuss that Liyao Chen had made a statement or that his DNA was found on a knife recovered by the police. Id. at 20:21-21:6.

Ling Chen said that he would have counseled his son to plead guilty to offers of two or five years, but that Quan never spoke about those offers. June 23rd Tr. at 9:25-10:23; 11:25-12:3. After his son's return from Canada, Ling Chen learned that Liyao Chen maintained that he did not participate with his codefendants in the fight leading to the complainant's injuries. Id . at 15:15-21.

E. Testimony of Attorney Philip Smallman

Philip Smallman was an attorney for almost 40 years, with a primarily criminal practice, who handled hundreds of cases from violations to homicides. See June 23rd Tr. at 24:12-24. He was assigned to represent Liyao Chen. Id. at 24:25-25:4. Smallman replaced John Monteleone as Liyao Chen's attorney. Id. at 29:15-19. Smallman understood that Liyao was eighteen or nineteen, an adult under New York law. Id. at 31: 2-7.

Smallman was aware of Liyao Chen's immigration status and discussed with him the adverse consequences because of his case, namely, that a felony plea or conviction after trial would likely result in his removal from the United States because he is not a citizen. June 23rd Tr. at 25:5-21. Smallman discussed the facts and circumstances of the case with Liyao Chen, including its strengths and weaknesses. Id. at 25:22-26:4. By the time of the pretrial hearings, before by the Honorable Vincent Del Giudice, the People's offer was seven years. Id. at 26:5-23. Judge Del Giudice laid out the strengths of the prosecution's case, and through the aid of a Chinese interpreter, Smallman explained to Liyao Chen that he believed the case against him "was quite strong," including a likely in-court identification and substantive physical evidence connecting him to the charges. Id. at 27:6-21. Smallman recommended that the seven-year plea would be in Liyao Chen's best interests, even though Liyao Chen maintained his innocence. Id. at 27:22-28:5; 31:8-12. He recalled that Liyao Chen did not appear scared, rather his demeanor gave Smallman the "impression . . . that he didn't think a trial was going to get him convicted . . . he never seemed to be . . . overly concerned with the prosecution's case." Id. at 28:23-29:8. Smallman had no contact or discussions with Liyao Chen's parents, nor did he think to speak with them. Id. at 31:13-25.

Smallman stated that he knew an attorney had been representing all four defendants, and that plea offers has been extended, but was unaware whether John Monteleone had received any plea offer. June 23rd Tr. at 29:23-30:3. Smallman also recalled apparently seeing Quan at one appearance but never spoke with him, although he had heard Quan had obtained a two-year offer. Id. at 30:4-19. Smallman had the general impression, without any specific information, that Quan was primarily an immigration attorney. Id. 30:20-23.

Both the New York State and the United States Constitution provide for the right to effective assistance of counsel. See US Const., 6th Amend.; NY Const., Art. 1, § 6; CPL § 440.10(1)(h). In evaluating a matter for ineffective assistance of counsel under the federal constitutional standard, a reviewing court must engage in a two-prong analysis. The court must first determine whether counsel's performance was deficient such that it "fell below an objective standard of reasonableness", and second, whether a defendant suffered actual prejudice as a result of counsel's deficiency such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 US 668, 688-694 (1984); see also People v. Stultz, 2 NY3d 277, 283 (2004). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland,466 U.S. at 694.

New York constitutional law applies the same standard as is provided in the first prong of Strickland. See People v. Turner, 5 NY3d 476, 480 (2005); People v. Baldi, 54 NY2d 137 (1981). However, New York courts have interpreted "meaningful representation" to include a prejudice component that "'focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case.'" See People v. Ozuma, 7 NY3d 913, 915 (2006) (quoting People v. Caban, 5 NY3d 143, 156 [2005]).

The imposition of mandatory minimum sentences by legislatures across the country created a surge in plea bargaining, whereby a prosecutor could negotiate a shorter sentence or other sentencing concessions with defense counsel, in exchange for the defendant's plea of guilty to a lesser charge. The practice has become so pervasive that most criminal cases that result in conviction are the result of plea bargaining—up to 97 percent by some estimates. See Ram Subramanian, Léon Digard, Melvin Washington II, and Stephanie Sorage. In the Shadows: A Review of the Research on Plea Bargaining. New York: Vera Institute of Justice, 2020 (available at www.vera.org/in-the-shadows) (last viewed Mar. 17, 2026).

Perhaps in part due to the prevalence of plea bargaining, courts have been slowly codifying the law around this often-closed-door process, and the right to effective assistance of counsel now exists at the plea negotiation stage as well. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). However, most federal and state court decisions thereafter addressed whether ineffective assistance of counsel was provided in choosing to accept a plea and foregoing trial. See, e.g. Padilla v. Kentucky, 559 U.S. 356 (2010); People v. McDonald, 1 NY3d 109 (2003).

However, in 1996, United States Court of Appeals for the Second Circuit encountered a Brooklyn case arising from the inverse factual pattern of the present matter: whether a person's Sixth Amendment rights could be violated by counsel's deficient performance in advising someone not to take a plea. See Borea v. Keane, 99 F.3d 492 (2nd Cir. 1996); see also Glover v. U.S., 531 U.S. 198, 203 (2001) ("[A]ny amount of [additional] jail time has Sixth Amendment significance"). New York courts soon followed suit. See People v. Goldberg, 33 AD3d 1018, 1019-20 (2d Dept. 2006); People v. Rogers, 8 AD3d 888 (3d Dept. 2004) ("Meaningful [*16]representation by counsel includes the conveyance of accurate information regarding plea negotiations, including relaying all plea offers made by the prosecution.").

On March 21, 2012—five months before Liyao Chen was sentenced in the instant case—the U.S. Supreme Court issued two landmark decisions which underscored the importance of effective assistance of counsel in plea bargaining: Missouri v. Frye, 566 U.S. 134 (2012) and Lafler v. Cooper, 566 U.S. 156 (2012). Read together, the U.S. Supreme Court held that defense counsel's failure to advise a defendant of a beneficial plea agreement satisfies the first prong of Strickland and may constitute ineffective assistance of counsel. See Frye, 566 U.S. at 148-50; Lafler, 566 U.S. at 165-69. However, in order to satisfy the second "prejudice" prong of Strickland, the defendant must show there was a "reasonable probability" that 1) the defendant would have accepted an earlier plea offer if it had been communicated; 2) that the choice to go to trial resulted in a harsher penalty than the earlier plea offer, and 3) that neither the prosecution nor the trial court would have used their discretion to prevent the offer from being accepted or implemented. See Frye, 566 U.S. at 148-50.

The defendant's burden is substantial and fact-intensive to weed out frivolous or fabricated claims after trial results in a conviction with a harsher sentence than a lapsed or rejected plea offer. Id. at 143-46. However, there exists some disagreement as to the effectiveness of these stopgaps, and the Court has kept them in mind while evaluating the credibility of the witnesses presented. See Jed. S. Rakoff, Frye and Lafler: Bearers of Mixed Messages, 122 Yale L.J. Online 25 (2012) (available at http: //yalela wjournal.org/forum/frye-and-lafler-bearers-of-mixed-messages) (last viewed Mar. 17, 2026).

1) Discussion of the First Prong of the Strickland Test

The Court finds that the first prong of Strickland, regarding whether Quan's performance was deficient such that it "fell below an objective standard of reasonableness," has been met under the state and federal standards in the instant case. In determining Chen's claim of ineffective assistance of counsel, the Court must evaluate Quan's performance under the prevailing norms in existence at the time of the representation, based upon the totality of the circumstances. See People v. Baboocall, 40 Misc 3d 1234[A] (Sup. Ct., NY Cty. 2013); Caban, 5 NY3d at 152; Stultz, 2 NY3d at 283-4. Strickland also instructs reviewing courts to be tolerant of counsel's decision-making:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

The seriousness of Liyao Chen's case, and the dire consequences he faced as a result, cannot be understated. The top counts that Liyao Chen faced were Class B violent felonies, and if convicted, just one of which would require a determinate sentence of imprisonment ranging between 5 and 25 years. See PL § 70.02(3)(a). Quan understood that Liyao Chen was not a U.S. citizen, his having arrived in this country shortly before his arrest. Liyao Chen had just turned eighteen. Neither Liyao Chen nor his family had any previous exposure to the American criminal legal system, nor did they speak English. The case was highly emotionally charged and publicized, with two complainants who had survived numerous stab wounds, punches, and kicks during a cruel attack at random. See Andrew Strickler, Stabbing Duo Gets 15 Years, NY Post (Sep. 19, 2012) (available at https://nypost.com/2 012/09/1 9/stabbing-duo-gets-15-years) (last [*17]viewed Mar. 17, 2026) (describing the sentencing of two of Liyao Chen's co-defendants in this case).

Although this matter pre-dates the discovery reforms of 2020, Quan also had strong reason to suspect the strength of the People's case was growing with each court appearance. The case had been indicted by a grand jury, and the Court found that the evidence was legally sufficient to support the indictment by the first post-indictment court appearance on May 13, 2011. The medical records of both complainants were also reviewed in camera by that time, and they were to be disclosed to the defense—along with the 911 call from the date in question. By the appearance on June 30, 2011, counsel was aware that DNA was recovered from the handle of the knife used in the stabbing, along with a fingerprint of Liyao Chen, and the motion to compel a buccal swab was granted by the following date on September 14, 2011.

The New York State Bar Association's Rules of Professional Conduct requires that a lawyer "shall not handle a legal matter that the lawyer knows or should know the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it." NY R. Prof. Conduct Rule 1.1 (2025). To determine whether a lawyer "employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to associate with a lawyer of established competence in the field in question." NY R. Prof. Conduct Rule 1.1, Note 1 (2025).

The Court is faced with the unfortunate reality that, despite the severity of the charges and the strength of the evidence, Liyao Chen was provided with ineffective assistance of counsel during the formative steps at the outset of his case. As discussed at length supra, Quan represented all four defendants without sufficient Gomberg warnings being given, even after motion practice had commenced, and Chen and his parents testified under oath that they were informed repeatedly and inaccurately by Quan that this indicted felony was of little concern, which appears to have impacted Liyao Chen's later representation by Smallman.

Quan had only handled a few criminal cases prior to the simultaneous representation of the four co-defendants, and his practice until that point had only involved misdemeanors and violations, not felonies. Even on those misdemeanors and violations, Quan's competency is dubious due to his initial failure to recall what CPL §30.30 referred to, after he had waived it for Mr. Chen. There was no indication that Quan ever engaged in any plea discussions to obtain a more favorable outcome for Liyao Chen, and Quan's appearances on the record are brief, with very little in the way of record-making on behalf of his four clients. Chen and both of his parents testified that they were not conveyed offers before Quan declined them on the record. Although Quan denied the fact, the Court credits that he only vaguely discussed the case with Liyao Chen and his family and that he downplayed its seriousness. With these facts taken together, even giving Quan the deference required by Strickland, Quan's representation of Chen at important pre-trial stages cannot be said to arise to the prevailing norms of competent, reasoned representation that an individual accused of a serious offense has the right to receive.

2) Discussion of the Second Prong of Strickland Under Federal Law and the Right to "Meaningful Representation" Under the New York State Constitution

After careful consideration, the Court also finds that Liyao Chen has met his burden under the federal "prejudice" prong of Strickland to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 [*18]U.S. at 694. This prong of the analysis in the context of plea negotiations "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." People v. Picca, 97 AD3d 170, 177-78 (2d Dept. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 [1985]).

Moreover, the Court of Appeals has acknowledged that "[New York's] ineffective assistance cases have departed from the second ('but for') prong of Strickland, adopting a rule somewhat more favorable to defendants." People v. Turner, 5 NY3d 476 (2005). In general, the issue for consideration pursuant to the New York constitution is whether counsel's performance amounts to "meaningful representation," which requires "an assessment of the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation." People v. Watkins, 42 NY3d 635 (2024).

In this Court's view, based upon the facts elicited at the CPL § 440.10 hearing, Liyao Chen has met his burden of satisfying both federal and state standards of prejudice. He has sufficiently shown that there was a reasonable probability that the outcome would have been different had he received effective counsel and that he was ultimately denied "meaningful representation."

Liyao Chen testified that he would have accepted an earlier plea offer but for Quan's ineffective assistance, and the Court finds this testimony credible when weighing the entirety of the testimony of Liyao Chen, his family, and Smallman against Quan's. Specifically, Smallman's testimony regarding Liyao Chen's disinterest in the outcome of the case, under this set of facts, appears to corroborate the assertions put forth by Liyao Chen and his family regarding Quan's deficient representation. Quan confidently and erroneously advised them, from the outset, that the nature of the case itself was insignificant. They were advised that Liyao Chen should not plead guilty, period, without any indication before this Court as to why. Based upon these facts, the Court cannot say with any confidence that Smallman's representation was free of any taint created by Quan's ineffective counsel. Not only had Liyao Chen been denied the opportunity to consider offers that had never been fully explained, but he'd also been told several times by a trusted attorney of his choice, from his community, and who spoke his language, that the case was nothing.

This prong of the analysis is arguably the most difficult for a proponent to overcome, with a significant number of cases resulting in denials due to insufficient evidence based upon self-serving statements, provided many years later, when weighed against the credible testimony of former defense counsel. See, e.g. People v. Fernandez, 5 NY3d 813, 813 (2005); People v. Samms, 208 AD3d 1259, 1260 (2d Dept. 2022); People v. Bertolini, 186 AD3d 499 (2d Dept. 2020); People v. Nicelli, 121A.D.3d 1129, 1130 (2d Dept. 2014); People v. Vega, 109 AD3d 942 (2d Dept. 2013); People v. Rogers, 8 AD3d 888, 890-91 (3d Dept. 2004) ("As only defendant's self-serving, after-the-fact testimony supported his motion, the court appropriately weighed the testimony and denied the motion.").

What stands this case apart from the numerous cases that fail on this prejudice prong is that this Court cannot deem Quan's testimony credible. See People v. Butler, 27 AD3d 365 (1st Dept. 2006) (deferring to a trial court's factual findings unless the hearing court's findings are unjustified or clearly erroneous). As described supra, this Court observed that counsel was evasive, unclear, and erratic in demeanor during testimony provided during the CPL § 440 hearings, resorting to calling Chen's current counsel "the enemy." While "[d]efense counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense [*19]might have been more effective[,]" the Court's impression of Quan was that he was inexperienced for a case of this magnitude in 2011, and that, years later, he appeared to give contrived, elusive testimony instead of speaking with candor to the Court. People v. Moreira, 175 AD3d 715, 717 (2d Dept. 2019); compare with People v. Samms, 208 AD3d 1259, 1260 (2d Dept. 2022) (counsel testified credibly about his practice advising clients about sentencing exposure in sufficient detail to overcome the defendant's self-serving testimony about receiving inaccurate sentencing information and not being counseled about a plea). The taint of this attorney's poor and conflicted advice to Liyano Chen and his family regarding the insignificance of the case appears to have infected the plea-bargaining stage and all future advice of counsel, and as such, the "prejudice" prong of the ineffective assistance of counsel claim under federal and state law has been met.

Liyao Chen has also shown that the choice to go to trial resulted in a harsher penalty of thirty-two years of imprisonment than the earlier plea offers involving two or five years, or even seven years, and there exists no indication that either the prosecution nor the trial court would have used their discretion to prevent the offer from being accepted or implemented. See Frye, 566 U.S. at 148-50. The People made the offers themselves, pursuant to their legal authority, and the record is clear that numerous judges throughout the pendency of the case had asked Liyao Chen, through counsel, if he had any interest in accepting those very plea offers.

For the reasons stated, this Court grants Liyao Chen's application pursuant to CPL § 440.10(h) upon the ground that "the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."

The question remaining for this Court is what remedy Liyao Chen is entitled to. Pursuant to CPL § 440.10(4), "[i]f the court grants the motion, it must . . . vacate the judgment, and must dismiss the accusatory instrument, or order a new trial, or take such other action as is appropriate in the circumstances." Because the basis of this Court's decision rests upon inadequate counsel during the plea stages, and upon Liyao Chen and his family's testimony that he would have accepted the People's offers involving five years of incarceration, the Court finds that dismissal of the accusatory instrument is an overbroad remedy. It is appropriate in these circumstances, in this Court's view, to leave the findings of the trial jury intact and re-sentence Liyao Chen for a period that comports with the People's offers that he was never properly counseled on and could not avail himself of.

Accordingly, Liyao Chen is sentenced to a determinate sentence of five years incarceration and five years post-release supervision on one count of Gang Assault in the First Degree (P.L. §120.07), five years incarceration and five years post-release supervision on one count of Assault in the First Degree (P.L. §120.10[1]), and two years of incarceration and three years post-release supervision on one count of Assault in the Second Degree (P.L. §120.05[2]). All sentences are to run concurrently.

This constitutes the decision and order of this Court.