Defendant pro se moves to vacate his conviction, pursuant to CPL §440.10, on the ground of ineffective assistance of counsel and for reduction of his sentence pursuant to

On May 25, 2010, Defendant pled guilty to Manslaughter in the First Degree

On July 5, 2011, on direct appeal, Defendant challenged his waiver of his right to appeal as unenforceable and his sentence as excessive. On January 5, 2012, the Appellate Division, First Department affirmed Defendant's conviction and found that his sentence was not excessive. People v. Dingle, 91AD3d 441 lv denied, 18 NY3d 993 [2012].

On September 6, 2013, Defendant, pro se, submitted an application for a writ of error coram nobis claiming that he received ineffective assistance of appellate counsel for failure to raise the following issues on appeal, specifically, the ineffective assistance of his plea counsel for failure to (1) assert a justification defense and, (2) adequately explain legal concepts, such as intent and the difference between "physical injury and "serious physical injury," which rendered his plea invalid as not knowing and voluntary. On March 13, 2014, the Appellate Division First Department denied Defendant's application for a writ of error coram nobis.

Now, Defendant, pro se, moves pursuant to CPL §440.10 to vacate his conviction on the ground that his plea counsel provided ineffective assistance of counsel in that he affirmatively misdavised him to enter an illegal plea agreement and also failed to assert a justification defense on Defendant's behalf. Alternatively, Defendant requests that his plea be modified to Manslaughter in the Second Degree, a class C violent felony and that his sentences be reduced to an indeterminate sentence for his Manslaughter conviction and to a one year sentence for his Promoting Prison Contraband conviction. Defendant also challenges the validity of his plea claiming that it was not knowing, intelligent and voluntary because the Court should have inquired about his justification defense and refused to accept his plea.

In Strickland v. Washington, 466 US 668 (1984), the United States Supreme Court set forth a two-prong test for establishing when an attorney renders ineffective assistance of counsel: (1) the representation must fall below an objective standard of reasonableness and (2) there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Under New York law, "[s]o long as the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." (People v. Baldi, 54 NY2d 137, 147 [1981]). The analysis focuses on the "fairness of the process as a whole rather than its particular impact on the outcome of the case." (People v. Caban, 5 NY3d 143, 156 [2005] citing People Benevento, 91 NY2d 708, 714 [1998]) .

Defendant's claim that counsel misadvised him to enter an allegedly illegal plea agreement is without merit. Defendant argues that pursuant to CPL §220.10(5)(d)(i), since the top count of the indictment was Murder in the Second Degree, a class A felony, he could only plead guilty to Manslaughter in the Second Degree, a class C felony. However, as the People [*3]point out, pursuant to CPL §220.10(5)(d)(i), "where the indictment charges a class A felony offense or a class B violent which is also an armed felony offense then a plea of guilty must include at least a plea of guilty to a class C violent felony offense (emphasis added). Thus, Defendant's plea to a class B violent felony offense is permitted. because it is a higher classification than a class C violent felony offense. Thus, Defendant's plea was not illegal.

Defendant also claims that counsel was ineffective because he failed to assert a justification defense on his behalf. However, Defendant's own conclusory assertions are inadequate to establish that counsel's conduct rose to the level of ineffective assistance and this warrants denial of Defendant's claim (CPL 440.30[4][b]). In order for Defendant to sustain his burden he must exclude any possible legitimate basis for counsel's conduct. He ordinarily cannot do this without an affidavit from counsel (see People v. Gil, 285 AD2d 7 [1st Dept 2001]). Defendant has failed to submit an affidavit from counsel or provided a reason for not doing so.

Moreover, "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure .... [a]bsent such a showing, it will be presumed that a counsel acted in a competent manner and exercised professional judgment" (People v. Rivera, 71 NY2d 705, 709 [1988]). Here, Defendant has not shown that his attorney should have pursued a justification defense (see

Nor was Defendant's sentence illegal. Since Manslaughter in the First Degree is classified as a B violent felony offense, Defendant was sentenced as a second violent felony offender with respect to that charge. The appropriate sentence, as a second violent felony offender was a determinate term of incarceration between 10 and 25 years (PL §§125.20; 70.02[1][a]), with between 2 ½ and 5 years post-release supervision (PL §70.45[2][f]). Defendant received a 20 year determinate sentence with 5 years post-release supervision, a legal sentence for this offense. Since Promoting Prison Contraband in the First Degree, a D felony, is not classified as a violent felony offense, Defendant was sentenced as a second felony offender with respect to that charge. An appropriate sentence as a second felony offender, was an indeterminate term of incarceration with a maximum sentence of between 4 and 7 years and a minimum sentence of one-half the maximum term imposed (PL §70.06[2],[3]). Since Defendant received an indeterminate term of incarceration of from 2-4 years for this offense, his sentence was legal and also the minimum possible. Therefore Defendant's sentence was not illegal and his motion pursuant to CPL 440.20 is denied.

Defendant also argues that his guilty plea was not entered into knowingly, intelligently and voluntarily and that the Court should have further investigated his justification defense. However, the record reflects to the contrary. Defendant was extensively allocuted as to the rights he was giving up by pleading guilty. In his plea allocution, Defendant swore under penalties of perjury that he discussed the plea with loved ones, family and counsel and was satisfied with counsel's services. Defendant stated that he was pleading guilty of his own free will and that he was getting a favorable disposition.

To insure that the plea was knowing and voluntary, the Court asked Defendant if he intended to cause serious physical injury and Defendant responded in the affirmative (Plea Minutes p. 12-13). Further clarifying the element of intent, the Court asked Defendant if when he pulled out his firearm and commenced shooting it was his intent to cause serious physical injury to the victim and Defendant answered in affirmative (Plea Minutes p. 14). Based on the circumstances of this case, additional inquiry by the Court concerning a justification defense was not warranted.

Accordingly Defendant's motions pursuant to set aside his sentence pursuant to CPL §440.20 is denied and defendant's motion to set vacate his judgment pursuant to CPL §440.10 is denied without a hearing.

This constitutes the decision and order of the Court.