In a predicate felony statement, the People alleged that the defendant was a mandatory persistent violent felony offender (Penal Law § 70.08), in light of a December 2004 conviction for attempted burglary in the second degree (Penal Law § 110/140.25(2)), a Class D Violent Felony, and an October 2013, conviction of the same offense (the "2013 Plea").

On July 13, 2019, defendant moved, pursuant to Crim. Proc. Law. § 400.20(6), for an order determining that the 2013 Plea was "obtained in violation of the rights of the defendant under the applicable provisions of the Constitution of the United States," and thus that it could "not be counted in determining whether" defendant was a persistent violent felon. On October 2, 2019, the Court orally DENIED defendant's motion.^[FN1] This written decision explains the Court's reasoning.

By New York County Indictment Number 3464 of 2017, defendant was charged with three counts of burglary in the second degree, Penal Law § 140.25(2), and three counts of burglary in the third degree, Penal L aw § 140.20. Defendant was alleged to have unlawfully entered a dwelling, with the intent to commit a crime therein, on three different occasions in [*2]August and September of 2017.

The 2013 Plea took place on October 9, 2013, 2013. Plea Transcript, at 1. When the case was called, the court observed that because defendant was charged with burglary in the second degree, a Class C violent felony, and had a prior violent felony conviction, he faced a minimum of seven years' imprisonment, and a maximum of fifteen. Id. at 2. Defense counsel replied that the People were offering a plea to attempted second-degree burglary, with a promised sentence of five years' imprisonment, an offer that the People confirmed. Id. at 2-3. Defense counsel indicated that the defendant was "willing to take" that offer. Id. at 3.

Defense counsel then entered the plea, and the defendant was placed under oath. Id. During the plea colloquy, defendant confirmed that he had spoken with his attorney about "this decision to plead guilty," and was "satisf[ied] that [counsel had] explained the different possibilities." Id. at 4-5. Defendant confirmed that no one had "forced" or "pressured" him into pleading guilty, and that he understood that because he was pleading guilty to a violent felony he faced a potential life sentence in the future if convicted of another violent felony Id. at 5, 6. Defendant waived his Boykin rights,^[FN2] and confirmed that he understood that, had he gone to trial, he might have been acquitted, but that if convicted he faced a minimum prison sentence of seven years after trial, instead of the five year-sentence that he had been offered on the reduced charge. Id. at 5-6.

The court then read the indictment to the defendant, explaining that the second-degree burglary count alleged that "in New York County on February 16th of this year you knowingly entered and remained unlawfully in a dwelling; that is, a place where people live, with the intention of stealing something once you were inside." Id. at 6-7. Defendant indicated that he "underst[oo]d" what he was "accused of." Id. at 7. Defendant acknowledged that he had entered "somebody's apartment" and that he "did not have any right to be in there." Id.

When the court asked "what did you go in there for?" defendant replied "To tell the dude to close his door, see if somebody wanted to close it." Id. The court then explained, "No, no, no. That's not a plea. You're here accused of going into somebody's apartment to steal something," to which defendant replied: "Yeah, I took some items out of there" that he knew he had "no right to take." Id. at 8. The court found that the defendant understood his rights, the "consequences" of pleading guilty and "the charge," and accepted the plea. Id. at 8-9.

By a motion filed on July 13, 2019, in connection with the instant indictment, defendant asserted that the 2013 Plea was "obtained unconstitutionally" because defendant's factual allocution "cast significant doubt upon his guilt." Messina Aff. at ¶¶ 4, 16. His specific argument was that the plea colloquy did not sufficiently establish that the defendant had the intent to commit a crime "prior to" entering the dwelling. Id. at ¶ 4, emphasis in original. Alternatively, defendant argued that defense counsel was ineffective in connection with the 2013 Plea because, although he was "aware that the intent to steal had to pre-exist the unlawful entry" he "did not discuss this with" the defendant as a potential trial defense. Id. at ¶ 31.

In connection with the ineffectiveness claim, defendant submitted an affirmation from the [*3]attorney who represented him during the 2013 Plea. In that affidavit, dated July 8, 2019, former counsel indicated that: he "had no specific recollection of providing [the defendant] with advice as to the required elements of burglary, or that the intent to steal had to exist at the time of the unlawful entry"; his "file does not contain any notes indicating that I advised [the defendant] that this was a potential defense; he "did not discuss" with the defendant the question of the timing of the intent "because I did not think it would succeed at trial," and; defendant was "very focused on getting a deal and angry at his prior lawyer for not arriving at that point." Greene Aff., at ¶¶ 2-4.

Defendant submitted his own affirmation in connection with this motion. He first explained that "[e]ver since he was a child he would" enter other people's apartments, alone or with others, because it was "fun to pretend we had our own place and to feel like we were doing something forbidden." Stewart Aff. at ¶ 2. He also admitted that he would sometimes "smoke[ ] weed or use[ ] other drugs" inside those apartments, "things I couldn't do in my mother's apartment." Id. Defendant confirmed that he was "arrested for burglary" in 2004, and was arrested again in 2010, but "got a good plea bargain." Id. at ¶¶ 3, 4.

In connection with the 2013 Plea, defendant asserted that his original attorney "was focused on a mental health defense," but that defendant "got frustrated," because the process took too long. Id. at ¶ 5. He then hired the same attorney he had used in 2010, whom defendant "knew" to be a "good negotiator." Id. Defendant recalled that the People originally offered him eight years' imprisonment, then seven, and finally five, which the defendant accepted because he "didn't realize [he] had any defense." Id. at ¶ 6.

Defendant asserted that his attorney did not explain the elements of burglary to him, and that he "never intended to steal anything when [he] went into the apartment." Id. at 8. Defendant indicated that he did not understand that "he actually had a defense," and that he "thought [his] only option was to plead guilty." Id. at ¶ 9.

Finally, defendant claimed that he did not fully understand the plea colloquy. First, he asserted he "didn't really" understand "several" of the questions the court posed with respect to "what I was giving up to take the deal." Id. at 10. Next, he claimed that he only admitted stealing from the apartment because the judge "seemed annoyed" when he asserted that his intent was only to see if the occupants wanted their door closed. Id. at 11. To the contrary, defendant "never intended to steal anything" once inside the apartment and "can't remember" whether he did. Id. at 12. Finally, defendant asserted that he has had "problems" his "whole life remembering things, understanding things and not acting impulsively," thus it "did not register" when the judge told him that with two prior violent felonies he would face a life sentence if he "were to enter an apartment again." Id. at 13. "If I had really understood this, and also that I had a defense, I would have turned down the plea, and chosen to go to trial." Id.

The Court first concludes that the defendant's 2013 Guilty Plea allocution sufficiently admitted the elements of attempted burglary in the second degree under Penal Law § 110.00 and 140.25(2). The judge read the indictment to the defendant, explaining that "[i]t alleges that ... you knowingly entered and remained unlawfully in a dwelling; that is, a place where people live, with the intention of stealing something once you were inside." Emphasis added. Defendant confirmed [*4]that he understood this, and admitted entering "somebody's apartment" that he "did not have any right to be in."

It is true that when the judge first asked the defendant why he had entered the apartment, defendant answered, "To tell the dude to close his door, see if somebody wanted to close it." But when the judge told the defendant that he was accused of "going into somebody's apartment to steal something," defendant answered "Yeah, I took some items out of there." Defendant also acknowledged that he "had no right to take those items," and when asked how he pled said "Guilty, ma'am."

Contrary to defendant's contention, the Court finds that this allocution did not "negate" the element of intent. The intent element was clearly and correctly explained to the defendant. He said that he understood what he was accused of, and agreed that he was not "pressured" or "threatened" to plead guilty. He also confirmed that he understood he might be acquitted after a trial but wanted to plead guilty anyway, since his attorney had "explained the different possibilities" to him. Thus, even though the defendant first identified an intent other than to commit a crime once inside the apartment - to "tell the dude to close the door" - when the judge reminded him that the offense included a requirement of entry with the intent "to steal something," the defendant replied "Yeah, I took some items out of there." Given the totality of the plea colloquy, defendant's affirmative response to the court's correction, coupled with his admission that he did steal from the apartment, satisfied the intent requirement of attempted burglary in the second degree.

The case that the defendant relies on does not require a different conclusion. Defendant cites People v. Lopez, 71 NY2d 662, 666 (1998), for the proposition that "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea ... the trial court has a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary." That is true, but Lopez is not controlling here. Defendant's allocution, in its totality, did not "clearly cast significant doubt" either as to his guilt or as to the overall voluntariness of the plea.

Defendant's case is therefore more like People v. Toxey, 86 NY2d 725, 725 (1995), where defendant's statement that he "d[id]n't carry weapons" did not "engender 'significant doubt' on the voluntariness of his plea" to four courts of first-degree robbery while displaying what appeared to be a weapon.

That the factual allocution during an otherwise voluntary plea, one that is the product of thorough and valid colloquy, might raise the specter of a possible defense does not, by itself, trigger a Lopez inquiry. See People v. Rodriguez, 173 AD3d 579, 580 (1st Dept. 2019) (Lopez inquiry not required where during plea colloquy defendant asserted that the gun was a toy, possibly suggesting the availability of the affirmative defense contained in Penal Law § 160.15(4)); People v. Welch, 164 AD3d 529, 530 (2d Dept. 2018) ("the plea allocution was sufficient inasmuch as it showed that the defendant understood the charges and made an intelligent decision to accept the plea [and], it was not necessary that he provide a factual exposition for each element of the offense to which he entered a plea of guilty").

Moreover, even if a Lopez inquiry were warranted here, the judge conducted a sufficient one. When defendant indicated that his intent upon entering the apartment was to see if he should shut the door, the court explained the intent element to the defendant, to which the defendant [*5]replied "Yeah," signaling his confirmation that he did indeed enter the dwelling with the intent to steal. This follow-up fully complied with Lopez; and, having received a satisfactory answer, the judge had no further duty of inquiry. See People v. Spanarkel, 170 AD3d 593 (1st Dept. 2019) (where allocution suggested an intoxication defense, court made sufficient inquiry to establish that defendant understood was giving up that claim). Here, the court's "clarifying question" and the defendant's affirmative answer were enough to ensure a voluntary plea. People v. Roundtree, 159 AD3d 508, 508 (1st Dept. 2018). This is not a case like People v. Serrano, 15 NY2d 304, 308 (1965), where the judge made no inquiry at all to clarify defendant's intent during a homicide plea, and where intent could not be "readily inferred from the defendant's recitation of the circumstances of the killing."

Accordingly, there is no defect or insufficiency in defendant's 2013 Plea allocution.

In any event, even if it were true that there was a defect in the factual allocution, even one that "negated" the intent element, there would still be no constitutional infirmity with respect to defendant's 2013 Plea.

Of course, the Due Process Clause requires that a plea of guilty be "voluntarily made." Boykin v. Alabama, 395 U.S. 238, 242 (1969). The longstanding test for determining the constitutional validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). This requirement is generally satisfied if the record of the guilty plea establishes a knowing and voluntary waiver of the Fifth Amendment right to remain silent, and the Sixth Amendment rights to a jury trial and to confrontation. Boykin, 395 U.S. at 243. Due Process does not generally require an admission of guilt during a guilty plea at all; a plea is constitutionally valid even if "there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment." Alford, 400 U.S. at 31. Thus, "there is no constitutional requirement that a trial judge inquire into the factual basis of a plea." Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975). See also Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) ("[D]ue process does not mandate a factual basis inquiry by state courts.")

This proposition underlies Alford. A guilty plea that lacks a factual allocution is nevertheless constitutionally valid:

[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

400 U.S. at 37. A guilty plea is also valid where a defendant "is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged," Brady v. United States, 397 U.S. 742, 751 (1970); the plea and is not compelled merely because it is "motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." Id.

To be sure, even the Alford rule has its limits, since the ultimate voluntariness of a guilty [*6]plea can be "determined only by considering all of the relevant circumstances surrounding it." Brady, 397 U.S. at 749 (1970). Thus, while the lack of a factual allocution does not by itself show involuntariness, a defect in the factual allocution, when accompanied by other defects in the colloquy, might render a plea of guilty involuntary. Henderson v. Morgan, 426 U.S. 637 (1976). In Henderson, the defendant was charged with first-degree murder in New York State, which at the time required proof that the defendant acted "willfully." Id. at 642. The first-degree murder indictment was read in open court. The defendant, however, pled guilty to second-degree murder, a reduced charge with a different intent element, but, during the allocution, "[t]here was no discussion of the elements of the offense of second-degree murder, no indication that the nature of the offense had ever been discussed with respondent, and no reference of any kind to the requirement of intent to cause the death of the victim." Id. at 642-43.

The court found the guilty plea to be involuntary because the element of intent to kill went completely "unexplained." Id. at 645, 646. This could have been cured by an "explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense ha[d] been explained to the accused." Id. at 647. The absence of these alternatives, however, rendered the case "unique" and rendered the plea involuntary because the defendant did not receive "adequate notice of the offense to which he pleaded guilty." Id.

This case is not governed by Henderson. To the contrary, the exact curative steps identified in that case were present here. First, there was indeed an "explanation of the charge by the trial judge." Id. The judge read the indictment to the defendant and, while it is true that the defendant was pleading guilty to the attempted crime, and not the completed crime, those two offenses have the exact same intent element. See People v. Bracey, 41 NY2d 296, 300 (1977). And, when the court asked the defendant if he understood what he was accused of, defendant replied "Yes." On this record, it is clear both that the element of intent was explained to the defendant and that he understood it. See United States v. McFadden, 238 F.3d 198, 201 (2d Cir. 2001) (A "reading of the indictment to the defendant coupled with his admission of the acts described in it" is "entirely adequate to establish a factual basis" for a guilty plea, even if the defendant's factual allocution omits an element).

The record here, unlike in Henderson, also contains a reasonable assurance that counsel had explained "the nature of the offense . . . to the accused." 426 U.S. at 647. During the colloquy, the court confirmed that defendant had "talked to [his] lawyer" and that defendant was satisfied that counsel had "explained the different possibilities" to him.

Allard v. Helgemoe, 572 F.2d 1 (1st Cir. 1978) is instructive here, as the facts although quite similar, were even more extreme. There, the defendant pled guilty to burglary without the court's explaining the elements of the offense. But the plea was still found to be voluntary, even though the defendant maintained that the "facts were not consistent with the element of the offense requiring an intent to steal during the breaking and entering; instead they suggested that petitioner had developed the intent to steal . . . after entering the building where the crime occurred." Id. at 2. The court found that, while there was considerable doubt as to the defendant's ability to understand all of his attorney's advice, defendant's understanding that "he would probably receive a more severe sentence if he went to trial and was convicted than if he pled guilty" rendered the plea voluntary. Id. at 2. Even "when the defendant fails to understand such legal nuances as the timing at which his intent to commit the illegal act occurred, despite the [*7]dramatic emphasis the law puts on that legal distinction, a guilty plea based on the rational decision to accept competent counsel's advice as to the wisdom of pleading or going to trial should be acceptable." Id. at 5.

Defendant's self-serving affidavit notwithstanding, the record of the plea here shows that the defendant made a similarly voluntary, rational, and informed choice. The court read the indictment to him, so he knew the intent element that the prosecution would have to prove at trial. His attorney had explained all of the "possibilities" to him, and the defendant knew that he would face a minimum of seven years' imprisonment if convicted after trial, but would receive a five-year sentence after pleading guilty. This was indeed "a voluntary and intelligent choice among the alternative courses of action open to the defendant," Alford, 400 U.S. at 31, and that is all that the federal constitution requires. The 2013 Plea was accordingly not involuntary.

Defendant's alternative claim, that his attorney was ineffective in connection with the 2013 Plea, is likewise unavailing.

The Sixth Amendment right to counsel extends to the plea-bargaining process. Missouri v. Frye, 566 U.S. 134, 140-41 (2012). See also Padilla v. Kentucky, 559 U.S. 356, 364 (2010); Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970).

In Hill, the Court held that the "the two-part Strickland ... test applies to challenges to guilty pleas based on ineffective assistance of counsel." 474 U.S. at 58.^[FN3] The performance component of Strickland requires a defendant to show that "counsel's representation fell below an objective standard of reasonableness.'" Id. at 57 (quoting Strickland v. Washington, 466 U.S. 688 (1984)). The second element requires the defendant to show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S., at 694; Frye, 566 U.S. at 148. In Hill, when evaluating the petitioner's claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." 474 U.S. at 59.

Defendant's motion fails to satisfy either part of Strickland. First, defendant's motion overwhelmingly establishes that defendant hired this particular attorney to negotiate a favorable plea for him, and that this is precisely what the attorney did. In his own affidavit, defendant indicates that he was "frustrated" with the pace of his first attorney's effort to prepare a trial defense, and that he made the choice to hire the same attorney who had represented him in the past because he knew that attorney to be a "good negotiator." And, indeed, if defendant's affirmation is accurate, this second attorney negotiated a five-year sentence when the People had been originally offering a sentence of first eight, then seven, years. Defendant's assertion that he [*8]hired this particular attorney specifically to negotiate a better plea for him is confirmed by counsel's own affirmation, in which he asserts that the defendant was "very focused on getting a deal and angry at his prior lawyer for not arriving at that point." An attorney who successfully performs precisely what he was retained to do cannot be said to have fallen "below an objective standard of reasonableness.'" Hill, 474 U.S. at 57.

This is so notwithstanding counsel's claim that he does not specifically recall discussing the elements of burglary with the defendant, or advising the defendant that the formation of criminal intent only after entry might be a defense to burglary. In the context of a case where counsel was retained specifically to negotiate a favorable plea, having done so for this same defendant in the past, the possible failure to explore a possible trial defense with a defendant who was adamantly opposed to taking the case to trial was not objectively unreasonable.

Nor does the court credit defendant's assertion that he would have declined to plead guilty and would have taken the case to trial if he knew that he "had a defense." This claim is belied by every facet of the record. During the plea colloquy, defendant repeatedly asserted that it was his desire to plead guilty. He also indicated that he knew there was a chance of an acquittal if the case went to trial, but that he was willing to accept a five-year sentence and the avoid the risk of a sentence of seven or more years. Defendant indicated that he was satisfied with his attorney, that the attorney had explained all of the "possibilities" to him, and that no one was forcing him to plead guilty.

Finally, defendant had fired the attorney who was preparing a trial defense, and chose to hire an attorney who was a "good negotiator." Given this, the Court does not credit the defendant's claim that he would have taken the case to trial if he knew that he had a potential defense. That claim is particularly spurious given that the defendant had pled guilty to the exact same offense in 2004, suggesting that he already knew full well the elements of attempted burglary in the second degree.

For these reasons, then, defendant's 2013 Plea was not the involuntary product of ineffective representation.

For the foregoing reasons, defendant's constitutional challenge to the 2013 Plea is denied.

This constitutes the Decision and Order of the Court.