On January 8, 2012, the defendant and a co-conspirator slashed two people in the face and head, resulting in permanent disfigurement to both victims. Some two months later on March 17, 2012, the defendant again slashed and viciously beat two additional individuals, resulting in permanent disfigurement to those victims as well. By Indictment Number 3980/12, the defendant was charged with Assault in the First Degree and related offenses for the January slashings and by Indictment Number 3277/13, the defendant was charged with Gang Assault in the First Degree and related offenses for the March slashings. On September 12, 2013, following extensive plea negotiations, the defendant entered pleas of guilty in both cases, and on July 16, 2014, was sentenced to concurrent determinate terms of imprisonment of twelve years to be followed by five years of post-release supervision. The sentences were ordered nunc pro tunc to January 8, 2013, at the defendant's request. Additionally, the sentences were ordered to [*2]run concurrently with the defendant's federal sentence for a Hobbs Act violation.^[FN1]

On or about February 25, 2016, the defendant filed a pro se motion to vacate the judgments of conviction pursuant to Criminal Procedure Law Section 440.10. The defendant's principal contention is that the pleas he entered were involuntary. The defendant further claims that retained counsel provided ineffective assistance in connection with those pleas. The People filed an affirmation in opposition to the defendant's motion. The defendant filed a reply on or about January 26, 2017. For the reasons that follow, the defendant's motion is denied in its entirety without a hearing.

The defendant advances several claims with respect to the guilty pleas he entered in these cases, concluding that the pleas were rendered involuntary. The defendant's chief complaint appears to be an alleged violation of his Boykin rights. The defendant's contention in this regard is, however, born of confusion, as he conflates the sentencing proceeding with the plea allocution.^[FN2] Additionally, the defendant appears to claim that he was under the influence of assorted substances at the time of the pleas — a claim belied by his appearance, demeanor, and speech throughout the Court's thorough plea allocution. In any event, the defendant's pleas were freely, knowingly, and voluntarily entered, and, accordingly, the motion to vacate the judgments of conviction on the ground of the involuntariness of the pleas is denied.^[FN3]

It is well-settled that a plea is freely, knowingly and voluntarily entered when the defendant has a "full understanding of what the plea connotes and of its consequences," People v. Harris, 61 NY2d 9, 19 (1983) (internal citations omitted), and when nothing in the allocution casts significant doubt on the defendant's guilt, see People v. Lopez, 71 NY2d 662 (1988). In the instant matter, the transcript irrefutably demonstrates that the defendant was fully aware of the consequences of his pleas, and nothing in the transcript casts any doubt on his guilt.

The defendant informed the Court during jury selection in the 2012 case, that he wished to enter guilty pleas to both indictments. The Court then provided the defendant an opportunity to confer with counsel privately. Upon returning to the courtroom, the defendant confirmed that he wanted to dispose of these matters by entering guilty pleas in exchange for the highly favorable disposition offered by the People. The Court agreed to the disposition and conducted a thorough allocution of the defendant.

To begin, the Court ensured that the defendant's decision to enter a plea of guilty was knowingly made and that he was fully aware of the parameters of the pleas.

Next, the Court ascertained that the defendant had had a full opportunity to discuss the decision to enter the pleas with his attorney, and that he was satisfied with counsel's performance.

Finally, the Court ensured that the defendant understood that the Court's sentencing promise was based on his anticipated cooperation with the Department of Probation in preparing a pre-sentence report.

Moreover, the transcript makes clear that the defendant unequivocally admitted his guilt [*3]to the crimes for which he was entering the pleas. Indeed, the court engaged in a precise factual allocution of the defendant.

The foregoing makes abundantly clear that the defendant was fully informed of his Boykin rights and unequivocally waived those rights. Boykin v. Alabama, 395 U.S. 238 (1969). [*4]Indeed, the extensive plea allocution irrefutably demonstrates that the defendant's pleas were freely, knowingly, and voluntarily entered. Moreover, his responses to the Court's pointed inquiry underscore the defendant's reasoned and well-informed choice to forgo trial in favor of a particularly advantageous disposition of the multiple violent felony offenses then pending against him.

To the extent the defendant now claims that at the time of the pleas he was "heavily under the influence of drugs and alcohol," having "taken five valiums," "smoke[d] three marijuana blunts and drank a quart of home-made 'hooch'," the defendant's appropriate, responsive, and unequivocal answers to the Court's thorough and particularized questioning refute any such contention.^[FN5] Moreover, this Court, during the extensive plea allocution, observed the defendant's appearance, demeanor, and speech, and concluded that the defendant was entering the pleas voluntarily. See People v. Sass, 49 AD3d 287 (1st Dept. 2008); People v. Wheeler, 289 AD2d 10 (1st Dept. 2001); People v. Murray, 257 AD2d 438 (1st Dept. 1999). Accordingly, the defendant's motion to vacate the judgments of conviction on the ground of involuntary pleas is denied.

Additionally, the defendant moves to vacate the judgments of conviction as, he claims, retained counsel provided him with ineffective assistance. Specifically, the defendant contends that defense counsel was suspended from the practice of law at the time of his representation, and that disciplinary proceedings against counsel interfered with his ability to represent the defendant. The defendant further contends that defense counsel failed to defend him properly and neglected to explain the possible penalties he faced for the charged crimes. The defendant's complaints are without merit.^[FN6]

As a preliminary matter, the defendant's assertion that defense counsel was a suspended attorney at the time of his representation is incorrect — he was not. Counsel was suspended by decision of the Appellate Division, First Department issued on December 9, 2014, with the suspension to take effect on January 8, 2015 — some fifteen months after the defendant entered the pleas here. In any event, even representation by a lawyer who is temporarily suspended from the practice of law does not constitute per se ineffective assistance of counsel. See People v. Kieser, 79 NY2d 936 (1992). Indeed, under the facts and circumstances present here, the defendant received the meaningful representation to which he was entitled.

The right to effective assistance of counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const., Amend. VI; N.Y.S. Const., Art. I, § 6. To prevail on a claim of ineffective assistance of counsel, however, a defendant must overcome the strong presumption that counsel rendered effective assistance. See People v. Hobot, 84 NY2d 1021 (1995). The [*5]standard for effective assistance consists of a "flexible approach" that considers "the circumstances of a particular case" in determining whether a defendant has received "meaningful representation." People v. Henry, 95 NY2d 563, 565 (2000), citing People v. Baldi, 54 NY2d 137 (1981). Thus, a court must analyze "the evidence, the law, and the circumstances . . . as of the time of the representation." People v. Henry, 95 NY2d at 565. In the context of a guilty plea, a defendant is deemed to have received effective assistance when a defendant "receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." People v. Ford, 86 NY2d 397, 404 (1995); see People v. Rodriguez, 189 AD2d 684 (1st Dept. 1993); People v. Thompson, 162 AD2d 153 (1st Dept. 1990).

In the instant matter, the defendant was under indictment for four separate stabbing incidents perpetrated against four different disfigured victims. In each case, the top charge was a class B violent felony offense, for which the defendant faced up to 25 years in state prison. Due, however, to counsel's skillful negotiation, the People eventually offered the defendant a plea that resulted in an aggregate term of imprisonment of twelve years to be followed by five years of post-release supervision for all four slashings. Moreover, counsel was able to convince the People and the Court to run the sentence nunc pro tunc to January 8, 2013 and concurrent with the defendant's anticipated federal sentence. To be sure, through counsel's efforts on his behalf, the defendant avoided not only significantly longer prison sentences, but also consecutive sentences for each of his four victims. So, too, the defendant avoided serving the state sentences consecutively to the federal sentence and received credit for the time he spent in federal custody by means of a nunc pro tunc sentence. That counsel was able to secure this advantageous plea on the defendant's behalf underscores his effectiveness.

Despite the foregoing, the defendant contends that counsel was ineffective for failing to defend him properly and for failing to explain the potential penalties to him. The defendant's contentions are simply belied by the proceedings, and the entirety of the record before this Court. Indeed, a Wade hearing was conducted by this Court on Indictment Number 3980/12. Prior to the commencement of the hearing, counsel demonstrated his familiarity with the instant case, the defendant's other pending assault case, and the defendant's federal matter. So, too, counsel skillfully represented the defendant at the hearing, effectively cross examining the People's witnesses and advancing well-reasoned legal arguments.

Moreover, throughout the Court's extensive plea allocution, discussed at length above, the defendant repeatedly and unequivocally assured the Court that he understood the charges pending against him, the potential sentences he faced, and the legal consequences of entering pleas to those offenses. Indeed, as the excerpts above irrefutably demonstrate, when asked if he understood what he was facing, whether counsel had answered all of his questions satisfactorily, and if he was satisfied with the services provided by counsel, the defendant answered each time in the affirmative. The record is devoid of even a hint that the defendant was in any way uninformed or unprepared to enter the guilty pleas. See discussion infra. Rather, the record speaks to counsel's successful efforts to secure a highly favorable disposition for his client. And, it bears repeating, the defendant received an extraordinarily advantageous plea, in no small part due to counsel's unrelenting advocacy. There is simply no evidence in the record, or otherwise, that counsel failed to represent the defendant to the best of his abilities. Indeed, it is hard to imagine how counsel could have been any more effective. Accordingly, the defendant's motion to vacate the judgments of conviction on the ground of ineffective assistance of counsel is denied.

The defendant's motion is denied in its entirety without a hearing. This constitutes the Decision and Order of the Court. The Clerk of the Court is directed to mail copies of this Decision to the defendant and to the District Attorney's office.

April 4, 2017