Upon the foregoing papers, the motion by the defendant for an order, pursuant to Criminal Procedure Law Sections 440.10(1)(h), vacating the defendant's conviction on February 27, 2013, of two counts of Penal Law §220.03 [Criminal Possession of a Controlled Substance in the Seventh Degree], on the grounds that the defendant's rights to due process and effective assistance of counsel were violated, is deemed to also be a motion to vacate the defendant's guilty plea pursuant to Criminal Procedure Law §220.60(3), and as such is denied in its entirety.

On May 6, 2011, the defendant was charged with violating Penal Law §220.16[1][Possession of a Controlled Substance in the Third Degree], a class B felony, Penal Law §220.06[5][Possession of a Controlled Substance in the Fifth Degree], a class D felony, and VTL §1163[Failure to Signal]. On February 27, 2013, the charges were reduced pursuant to CPL 180.50 to two counts of Penal Law §220.03 [Criminal Possession of a Controlled Substance in the Seventh Degree], a class A misdemeanor. [*2]

On February 27, 2013, the defendant was convicted, upon a plea of guilty, of violating one count of Penal Law §220.03 [Criminal Possession of a Controlled Substance in the Seventh Degree]. Defense counsel now moves to vacate the judgment of conviction pursuant to CPL 440.10(1)(h) on the ground that he was deprived effective assistance of counsel because his attorney failed to advise him or misadvised him regarding potential motions, discovery and hearings. As such, the defendant's motion is determined as follows.

The People correctly point out that the defendant has not yet been sentenced, thus defense counsel's reliance upon the cited provision is wholly inapplicable to the matter at bar. The court will, however, deem the instant application as one to vacate the defendant's guilty plea pursuant to CPL 220.60(3).

CPL 220.60(3) provides:

"At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored."

Although CPL 220.60 applies to indictments, CPL 340.20, which governs pleas in local criminal courts, expressly renders the provisions of Article 220 applicable to pleas to informations. Consequently, this court in its discretion may allow defendant to withdraw his guilty plea, as a sentence has not yet been imposed. Further, it is the defendant who bears the burden of demonstrating that his/her plea of guilty was not knowingly, voluntarily, and intelligently entered (see People v Bruno, 73 AD3d 941 [2d Dept 2010]; People v Brooks, 36 AD3d 929 [2d Dept 2007]; People v Martin, 227 AD2d 416, 417 [2d Dept 1996]).

The United States Supreme Court has set forth a two-pronged test for determining whether a defendant has been denied his right to effective assistance of counsel under the federal Constitution. First, a defendant must show that counsel's performance was deficient in that such performance, in light of all the circumstances, fell "outside the wide range of professionally competent assistance" (Strickland v Washington, 466 US 668, 687-88 [1984]). Second, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different but for counsel's alleged unprofessional errors (Id., at 694).

Under the New York State Constitution, the two (2) prongs of the Strickland test are effectively merged into one, such that a defendant's right to effective assistance of counsel is satisfied when, under the totality of the circumstances existing at the time of representation, counsel provided defendant with "meaningful representation" (see People v Benevento, 91 NY2d 708, 712 [1998]; see also, People v. Peque, __NY3d__, 2013 NY [*3]Slip Op 7651 at **13, 2013 NY LEXIS 3182 at *34 [Nov. 19, 2013]; People v. Hernandez, ___NY3d___, 2013 NY Slip Op 7658 at **3, 2013 NY LEXIS 3157 at *4 [November 19, 2013]).A defendant bears a high burden in establishing that he was deprived of his constitutional right by less than meaningful representation (see People v Hobot, 84 NY2d 1021 [1995]).

In the case at bar, the court rejects the defendant's claim of ineffective assistance of counsel. In doing so, the court has considered the allegations raised by defendant in his affidavit, the arguments made by counsel, and the transcript of the minutes of the defendant's plea. The court finds that counsel's representation did not fall below an objective standard of reasonableness. The defendant was originally charged with Class B and D felonies. The defendant plead guilty to a Class A misdemeanor in full satisfaction of all the charges against him. In accepting an offer to plead guilty to the reduced charge, the defendant avoided trial with a possible conviction of a higher crime with substantial imprisonment.

Moreover, a review of the transcript confirms that at the time of defendant's plea, the court specifically asked the defendant if he was satisfied with the manner in which he was represented by his attorney. In response, the defendant stated: "Very" [see Transcript of the Minutes pg 4]. Moreover, self serving, conclusory statements that a defendant would not have plead guilty and would have insisted on going to trial are insufficient to establish prejudice (see, Park v United States, 222 Fed Appx 82 [2d Cir 2007]; United States v Horne, 987 F2d 833 [D.C.Cir 1993] [to establish prejudice a defendant must make more than a bare allegation that he would have plead differently and gone to trial]).Accordingly, this court finds the requirements for a valid guilty plea to have been met and the defendant's motion is denied in its entirety (see, People v. Goldstein, 12 NY3d 295, 301 [2009]; People v. Anderson, 98 AD3d 524 [2nd Dept. 2012]).

The foregoing constitutes the Decision and Order of the court.

So Ordered:

Hon. Gary F. Knobel

District Court Judge

Dated: November 21, 2013