QUESTION PRESENTED

Upon Defendant's application to vacate his August 20, 2018 felony plea pursuant to CPL §440.10, and this Court having conducted a hearing thereon, does the evidence presented demonstrate a constitutionally defective plea and/or constitutionally defective representation by plea counsel?

On May 15, 2018, Defendant was arrested and charged with Sexual Abuse in the First Degree, for allegedly touching and rubbing the vagina of his girlfriend's 10 year-old-child under her clothing.

On August 20, 2018, Defendant waived indictment and plead guilty on the above-captioned Superior Court Information to one count of Sexual Abuse in the First Degree (PL 130.65[3]) and one count of Endangering the Welfare of a Child (PL 260.10[1]), with a [*2]negotiated conditional disposition to interim probation. If the defendant were to fail to complete interim probation, he faced conviction of the felony with enhanced sentence. If the defendant were to successfully complete interim probation, the felony conviction would be withdrawn, and defendant would be sentenced to a term of probation on the misdemeanor conviction.

On August 23, 2018 (three days after Defendant's plea), Probation Officer Anderson and Probation Officer Papp made an unscheduled visit to the Defendant's home in East Patchogue. Judge Wilutis subsequently conducted a hearing on the Defendant's conduct on 08/23/18, and determined based upon the credible evidence that the following took place:

"The officers introduced themselves and explained to the defendant that although he had been given the name of another officer, the defendant would be reporting to Officer Anderson who is in the Special Offenders Unit. They proceeded to have a conversation in which Officer Anderson went over some of the probation conditions with the defendant. Officer Anderson also explained that she would need to do a search of the house and asked the defendant if there were any weapons in the house to which the defendant answered in the negative. She also inquired as to any other occupants in the home and the defendant stated that he lived alone. The defendant further stated that he was the vice president of a mortgage company and Officer Anderson told the defendant that he would not be allowed to make visits to any of his clients' homes.

The officers then conducted a search of the home. While in the defendant's bedroom, Officer Anderson opened the top drawer of a night stand adjacent to the defendant's bed. Within that drawer, an ASP expandable baton which is typically used by law enforcement, brass knuckles, and a large stun gun were found. Officer Anderson then requested assistance from the Suffolk County Police Department. Subsequently, two smaller stun guns, a large machete, two baseball bats, a money counter, and a large sum of cash were discovered. The Suffolk County Police Department charged the defendant with four counts of Criminal Possession of a Weapon in violation of Penal Law §265.02(3) and two counts of Criminal Contempt in the Second Degree in violation of Penal Law §215.50(3)." (Judge Wilutis decision of 01/28/19, Pg. 2).

On August 27, 2018 (seven days after Defendant's plea), Probation Officer Anderson filed a violation of probation based upon the conduct of August 23, 2018 described above.

On October 15, 2018 (fifty-six days after Defendant's plea), Defendant filed a motion to withdraw his plea of guilty pursuant to CPL §220.60, on the grounds of ineffective assistance of counsel and actual innocence.

On December 4, 2018, Judge Kahn issued a decision denying the application to withdraw the plea and ordered the Defendant to appear for further proceedings.

On January 7, 2019, Judge Wilutis conducted a violation of interim probation hearing, at which multiple witnesses testified including Senior Probation Officer Anderson, Defendant's brother, Raymond M, and Defendant's sister, Irene Consiglio. It appears, from Judge Wilutis' decision that Defendant argued against his violation on the grounds that Defendant did not understand the plea or the terms of probation:

"The defendant has failed to submit any evidence that would corroborate his claim that he did not understand the probation conditions. Other than the testimony of his siblings who stated that they have had to help the defendant to read complex documents in the past, the defense offered no experts or written documentation that could substantiate the defendant's claim and provide a justifiable excuse for violating the conditions of his [*3]interim probation."

On January 28, 2019, Judge Wilutis issued a decision which found Defendant in violation of interim probation.

On March 21, 2019, Defendant was interviewed by the Suffolk County Department of Probation in preparation for his sentencing. Defendant denied having any sexual or inappropriate contact with the child victim and "remained insistent that he did nothing wrong." The Pre-Sentence Investigation report noted that:

"The defendant advised that he plead guilty at the advice of his attorney, who he has since fired. He claimed that he was scared and confused at the time he took the plea and was trying to avoid a lengthy jail sentence. He insisted that the police statements made by both his victim I.K. and her mother A.G. were fabricated and untrue. The defendant indicated that he is learning disabled and that the Court procedure was not adequately explained to him. He stated that his rights were violated as per the 'American Disability Act'." [ ]

"M informed that since the passing of his mother in 2010 he has suffered from severe anxiety and panic attacks. He indicated that he sees a psychiatrist monthly and is prescribed Xanax.

The defendant indicated that as a result of this offense he has been involved with group sex offender therapy with Ms. Emily Chappell. On March 20, 2019 contact was made with Ms. Chappell. She advised that the defendant has attended treatment as scheduled, but has taken no responsibility for his offense and has not admitted to any wrongdoing. Ms. Chappell indicated that at one point the defendant stated that he may have touched his victim's stomach and private area inadvertently while searching for the remote control, but due to his prescription medication is unsure. When questioned regarding this, the defendant denied ever making that statement. Ms. Chappell stated that if the defendant is unwilling to take responsibility for his offense, he will be discharged from treatment."

On April 8, 2019, Judge Wilutis sentenced the Defendant to five months jail and 10 years of probation supervision on the felony of Sexual Abuse in the First Degree and certified the defendant a sex offender. Judge Wilutis also conducted a risk level assessment hearing on the Defendant pursuant to Correction Law §168-n. Evidence submitted at the risk level assessment hearing included a page of the Probation intake questionnaire filled out by the Defendant. In response to the question "If you have ever had any serious mental or physical health problems, please describe," Defendant wrote the word "No." Judge Wilutis adjudicated the Defendant a level-two sexually violent offender.

On November 14, 2019, the Department of Probation filed a Violation of Probation against the Defendant.

On December 10, 2019 Judge Wilutis signed the Declaration of Delinquency on the Violation of Probation. This Violation of Probation is still pending, and held in abeyance pending the resolution of the instant CPL §440.10 proceedings.

On October 10, 2019, Defendant filed a motion pursuant to CPL §440.10, seeking to vacate the Defendant's plea on a number of bases. Attached to the motion were several documents in support of the application, including an affidavit from the Defendant, in which he stated, inter alia:

"Please find attached documentation with respect to my learning disability and generalized anxiety disorder. I was under the most amount of pressure in my life when I walked in to the courtroom before your honor to take the plea. Based upon my previous attorney telling me to say yes in the hallway to the questions, under pressure, I followed his advice. Further, I had difficulty comprehending the whole plea proceeding and what was happening. I respectfully request that the Court vacate the plea and allow me to proceed to trial. I am innocent of the charges, and I was not in a clear frame of mind at the plea, and due to my anxiety and the pressure I experienced, I took the plea."

The motion also included an affidavit from Raymond M, Defendant's brother, in which he stated, inter alia:

"I arrived at the courthouse at approximately 9:15 AM. I Went through security and up to your honor's courtroom. I sat outside the courtroom with my brother, K, and we waited for Mr. Russo, K's previous attorney to arrive. Mr. Russo arrived at the courtroom, during the course of his explanation to K as to what would happen in the courtroom, I heard K telling Mr. Russo that he did not want to take the plea. Mr. Russo told K if he did not take the plea, he would not represent K anymore. Further, Mr, Russo said in sum that the DA and the Court would be mad if K did not take the plea that Mr. Russo said he worked out with the DA. He further said to K if you don't take the plea, you are going to get seven (7) years, I did not witness Mr. Russo discuss any options with K, other than what I perceived to be him placing a lot of pressure on my brother to take this plea, During their conversation I repeatedly witnessed my brother conveying to Mr. Russo that he did riot want to take the plea. The conversation in the hallway went on for thirty minutes. At no time did I see Mr. Russo reading anything to my brother. During the course of their conversation I could see and hear that my brother was getting upset, I witnessed Mr. Russo and my brother yelling back and forth at each other. I witnessed Mr. Russo raising his voice and yelling at my brother in a forceful way, appearing to put a lot of pressure on him that he must take tire plea. Over and over again, my brother told Mr. Russo he is innocent of the charges and he did not want to take a plea."

The motion also included a psychiatric report by Dr. Robert M. Galatzer-Levy, MD, in which he stated, inter alia:

"There is a strong likelihood that, because of a severely disturbed mental state arising from a combination of Mr. M's underlying psychiatric disorders and the coercive pressure he received from his then attorney, Mr. M suffered from diminished competence to plead guilty and did not do so freely and knowingly:"

On February 4, 2020, this Court granted the October 10, 2019 application for a CPL §440.10 hearing on several bases, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to adjourn the plea until he had reviewed with the defendant, or investigated the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt.

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed adequately to explain the legal effect of the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt.

• Defendant claims the plea was the product of ineffective assistance of counsel in that [*4]his prior attorney failed to fully investigate the use of mental health professionals to challenge the victim's testimony.

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to conduct any investigation into the credibility of the victim or review the physical evidence in this case.

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to inform the defendant of the consequences and sentences he faced after trial if convicted.

On March 3, 2020, the People filed a motion for leave to reargue this Court's decision dated February 4, 2020.

On May 26, 2020, this Court denied the March 3, 2020 application for reargument and reconsideration of its decision dated February 4, 2020.

On June 18, 2020, Defendant filed a supplemental motion pursuant to CPL §440.10, seeking to vacate the Defendant's plea on an additional basis, namely that "Defendant's plea was not knowingly, voluntarily, and intelligently made based on the defendant's prior counsel's representations, exerting force, coercion, terror, and direct and indirect threats to the Defendant, if he refused to plead guilty." Attached to the motion were several documents in support of the application, including a new affidavit from the Defendant, in which he stated, inter alia:

"On August 20, 2018,1 took a plea. On that day of the plea, Mr. Russo and I got into an argument in the hallway of the courthouse. I have already explained in my previous affidavit his production of a taped conversation on CD he received from the District Attorney that day. I will kindly refer the court to that affidavit for an explanation of what transpired. Phil Russo told me it was today to plea or nothing and there would be no adjournment. He told me that I had to plead guilty. He also told me that he worked out a plea deal with the District Attorney and that I had no choice but to take the plea deal, or I would make him look bad. Mr. Russo told me that if I did not take the plea, I would do seven (7) years in jail. When I insisted on my innocence to Mr, Russo, he became angry with me and frustrated. He said if I did not take the plea deal, he would no longer represent me. I felt under so much pressure that day that I took the plea. I have been diagnosed with anxiety, and I have a learning disability. At the time that I took the plea, I was under so much pressure, and because of it, I gave in. My anxiety was so high that l just wanted to get out of the courthouse. My ability to process information is compromised generally, and completely compromised when I am under pressure, I need friends and family to read documents to me to help me comprehend what the document says. I was diagnosed with a learning disability, generalized anxiety disorder and post-traumatic stress disorder. I struggle with reading comprehension as well. I would like the Court to know that my lawyer did not explain the probation conditions or ask me if I understood them. Had I comprehended all of the conditions, I would have never taken the plea. I now understand from my attorney that the probation conditions mandate that I consent to polygraph tests and admit to the crime as part of treatment. It was not explained to me that while on probation if I refuse to admit to the charges, I will be deemed non-cooperative, and be terminated from probation. If I had known this, I would not have taken the plea before this Honorable Court."

On July 17, 2020, this Court granted the June 18, 2020 application for a CPL §440.10 hearing on the additional basis that:

• Defendant claims the plea was not knowingly, voluntarily, and intelligently made based on the defendant's prior counsel's representations, exerting force, coercion, terror, and direct and indirect threats to the Defendant, if he refused to plead guilty.

On August 10, 2020, the Defendant sent the People a letter including expert witness disclosures of two witnesses: Dr. Kathleen Acer and Dr. Robert Galatzer-Levy. The letter indicated that Dr. Acer evaluated the Defendant in 2012, and diagnosed the Defendant with "an Axis I diagnosis, with general conditions of panic disorder, Mixed Anxiety and Depressed Mood disorder in the mild to severe range." The letter further advised that Dr. Acer performed a new evaluation of the Defendant in 2020. The letter advised that Dr. Galatzer would testify in accordance with the report provided in the original motion.

On October 16, 2020, the People filed a motion to preclude the Defendant from presenting testimony from Dr. Kathleen Acer and Dr. Robert Galatzer-Levy on the basis that mental health testimony from these witnesses would not be relevant.

On November 20, 2020, this Court denied the October 16, 2020 application for preclusion on the basis of relevance.

On February 5, 2021, the People filed a letter, inter alia, opposing a Defense intention to call psychologist Tina Zottoli, and a separate intention to substitute Dr. Peter Favaro in place of Dr. Robert Galatzer-Levy.

On February 6, 2021, the Defense filed a letter in response to the People's February 5, 2021 letter. The Defense clarified their intention to call three expert witnesses: Dr. Kathleen Acer, Dr. Tina Zottoli,and Dr. Peter Favaro. The Defense also provided proffers of their proposed testimony, inter alia:

"Dr. Acer will testify regarding the diagnoses of Mr. M" and that such diagnoses include "Persistent Depression Disorder with Anxious Distress; Panic Disorder; Specific Learning Disorder-Reading Comprehension-Provisional."

"Dr. Zottoli will discuss the science behind how it is that someone can walk into a courtroom and take a false plea. She will further detail for the Court indicators in this case which increased the risk of a false plea that which is not "knowing, voluntarily and intelligently made."

"While Dr. Favaro is an experienced doctor, with years of experience testifying in both state and federal court on many issues involving psychology, the purpose for calling him goes to the psychological testimony regarding false claims in child sex abuse cases, and how specific factors in this case increased the likelihood of a false claim by the complainant. He will outline the concepts regarding what a psychological expert, had they been consulted by the Defense would have provided to counsel and the jury. This is the only way at a 440 hearing to show deficiency in counsel's failure to consult with an expert. But for counsel's failure to be empowered with expert testimony in his arsenal, Mr. M would have rejected the plea and went to trial."

Several witnesses testified at the hearing. In chronological order, they were: Raymond M, Dr. Tina Zottoli, Dr. Kathleen Acer, K.M., Dr. Peter Favaro, and Philip Russo. With regard to Raymond M, Dr. Tina Zottoli, Dr. Kathleen Acer, Dr. Peter Favaro, and Philip Russo, this Court credits, in part, their testimony, and does not credit other parts of their testimony, as more fully explored below.

However, this Court found the testimony of K.M. to wholly lack credibility. This [*5]determination is based upon the following individual and aggregate factors: 1) Defendant's demeanor while testifying, 2) Inconsistencies in Defendant's testimony regarding his reading disability, 3) Inconsistencies in Defendant's testimony regarding having a panic attack at the plea, 4) Inconsistencies in Defendant's testimony regarding the duration of his mental health issues, 5) Inconsistencies in information Defendant provided to Dr. Acer in 2012 evaluation, 6) Inconsistencies in information Defendant provided to Dr. Acer in 2020 evaluation, 7) Inconsistencies in answers given on the Personality Assessment Instrument to Dr. Acer at 2020 evaluation, 8) Testimony regarding motive to create facts in support of coercion/mental illness defense, and 9) Interest as a matter of law.

With regard to K.M.'s demeanor while testifying, this Court found K.M.'s testimony on direct examination varied greatly from his testimony on cross-examination. He was polite, friendly, prompt, and appeared to be open on direct examination. However, on cross examination, Defendant was, at times hostile, argumentative, and evasive in his answers. This Court concludes, based upon its direct observations of the Defendant's testimony, that his testimony was exaggerated, and otherwise lacked credibility.

This Court noted hostility and bias in the Defendant's demeanor. This Court is guided by the New York Pattern Jury instructions on "Credibility" that such hostility and bias may impact credibility, which states:

"Some of the factors that you may wish to consider in evaluating the testimony of a witness are as follows: [ ] Did the manner in which the witness testified reflect upon the truthfulness of that witness's testimony? Did the witness have a bias, hostility or some other attitude that affected the truthfulness of the witness's testimony?"

The Defendant's hostile and biased demeanor while testifying, leads this Court to discredit his testimony.

With regard to inconsistencies, this Court found K.M.'s testimony to contradict itself at certain points, and to contradict the credible testimony of others.

In one area of inconsistency of Defendant's testimony, he affirmed that he has a learning disability, dyslexia and difficulty reading when under pressure.Defendant testified regarding his difficulties understanding the written word as follows:

Q: Prior to the plea, were you diagnosed with any mental health issues?

A: Yes.

Q: Generally, tell us what you were diagnosed with?

A: Well, my mother died of cancer in 2010. It was very traumatizing for me. I was in Winthrop Hospital. Then a year later I got cancer. I was battling cancer for a long time and, um, so at that point I was—I was out of work and I was dying, okay, and so I had a mental—I had a lot of mental problems going on at that point.

Q: When you talk about mental problems, what were you experiencing?

A: I had I thought I had a heart condition. I had extreme panic attacks. I can't breathe. I can't focus. I can't comprehend things. My reading comprehension is little to none. I need to hear things.

(Minutes of 04/07/21, Pg. 98, lines 3—21) (Emphasis added).

Dr. Acer's Evaluation of 07/28/20, entered as Exhibit E, indicates that Defendant told her "I need to hear something to understand it" (Exhibit E, Pg. 2).

This Court assessed Defendant's testimony on this issue and found it to be logically inconsistent with other evidence. First, If the above testimony were fully accurate and not exaggerated, Defendant would presumably maintain a consistent level of difficulty with regard to reading documents in Court. Defendant would not selectively manifest such inability and difficulty reading, if it were a true difficulty or inability, it would be so consistently. However, this Court notes that Defendant's conduct in Court was not consistent with regard to reading difficulty. At times, Defendant was called upon to read documents while testifying, and did so without any apparent difficulty, while at other times he appeared, in this Court's view, to feign difficulty. It appeared to this Court that Defendant would occasionally recall that he testified about having difficulty reading, and would request assistance, while other times he showed no difficulty reading at all.

Second, If the above testimony were fully accurate and not exaggerated, and Defendant's "reading comprehension is little to none" as he insists it to be, then Defendant's ability to communicate by text message would be nearly zero. It would take a long time for Defendant to understand text messages sent to him and to formulate responses by text. However, this Court notes that Exhibit 1 contains a long series of text messages between the Defendant and Philip Russo, which documents the exact timing text messages were sent. Rather than demonstrating poor reading comprehension, Defendant appeared to have no difficulty understanding the text messages sent to him by Mr. Russo, and responding with text messages in quick conversational speed (often less than 1 minute later). Defendant routinely received text messages from Phillip Russo, and responded within seconds with lengthy text messages of his own. To provide several examples which seem to refute Defendant's above testimony:

1. On 05/14/18 at 11:26:21 P.M., Phillip Russo sent Defendant a text message consisting of 25 words. Thirty-seven seconds later, Defendant sent back a text message response.

2. On 05/15/18 at 7:55:00 A.M., Phillip Russo sent Defendant a text message consisting of 6 words. Nine seconds later, Defendant sent back a text message response.

3. On 05/17/18 at 11:12:04 A.M., Philip Russo sent Defendant a text message consisting of 29 words. Forty-five seconds later, Defendant sent back a text message response.

4. On 05/24/18 at 10:24:03 A.M., Philip Russo sent Defendant a text message consisting of 14 words. Forty-three seconds later, Defendant sent back a text message response.

5. On 05/26/18 at 03:01:51 P.M., Philip Russo sent Defendant a text message consisting of 6 words. Nine seconds later, Defendant sent back a text message response.

6. On 06/19/18 at 03:29:34 P.M., Philip Russo sent Defendant a text message consisting of 16 words. Twenty-three seconds later, Defendant sent back a text message response.

7. On 06/19/18 at 03:31:05 P.M., Philip Russo sent Defendant a text message consisting of 17 words. Forty-three seconds later, Defendant sent back a text message response.

8. On 06/21/18 at 06:57:33 P.M., Philip Russo sent Defendant a text message consisting of 17 words. Thirty-five seconds later, Defendant sent back a text message response.

9. On 06/25/18 at 08:48:10 P.M., Philip Russo sent Defendant a text message. Twenty-three seconds later, Defendant sent back a text message response.

10. On 06/26/18 at 09:46:27 A.M., Philip Russo sent Defendant a text message consisting of 22 words. Twenty-seven seconds later, Defendant sent back a text message response.

11. On 06/26/18 at 09:49:08 A.M., Philip Russo sent Defendant a text message consisting of 6 words. Twenty-three seconds later, Defendant sent back a text message response.

12. On 07/27/18 at 09:18:33 P.M., Philip Russo sent Defendant a text message consisting [*6]of 12 words. Thirty-two seconds later, Defendant sent back a text message response.

13. On 07/28/18 at 05:39:32 P.M., Philip Russo sent Defendant a text message consisting of 23 words. Seven seconds later, Defendant sent back a text message response.

14. On 07/30/18 at 05:53:15 P.M., Philip Russo sent Defendant a text message consisting of 9 words. Twenty-seven seconds later, Defendant sent back a text message response.

15. On 08/01/18 at 09:41:02 P.M., Philip Russo sent Defendant a text message consisting of 6 words. Twenty-five seconds later, Defendant sent back a text message response.

16. On 08/03/18 at 12:36:27 P.M., Philip Russo sent Defendant a text message consisting of 12 words. Eighteen seconds later, Defendant sent back a text message response.

17. On 08/10/18 at 11:25:24 A.M., Philip Russo sent Defendant a text message consisting of 19 words. Thirty-one seconds later, Defendant sent back a text message response.

18. On 08/28/18 at 04:17:41 P.M., Philip Russo sent Defendant a text message consisting of a phone-number. Sixteen seconds later, Defendant sent back a text message response.

19. On 09/09/18 at 03:45:09 P.M., Philip Russo sent Defendant a text message consisting of 4 words. Thirty-six seconds later, Defendant sent back a text message response.

20. On 09/12/18 at 12:18:26 P.M., Philip Russo sent Defendant a text message consisting of 22 words. Twenty-three seconds later, Defendant sent back a text message response.

21. On 09/12/18 at 05:55:15 P.M., Philip Russo sent Defendant a text message consisting of 7 words. Twenty-five seconds later, Defendant sent back a text message response.

22. On 09/12/18 at 06:04:31 P.M., Philip Russo sent Defendant a text message consisting of 7 words. Thirty-three seconds later, Defendant sent back a text message response.

23. On 09/12/18 at 06:08:05 P.M., Philip Russo sent Defendant a text message consisting of 12 words. Eighteen seconds later, Defendant sent back a text message response.

24. On 09/16/18 at 08:25:44 A.M., Philip Russo sent Defendant a text message consisting of 21 words. Twenty-one seconds later, Defendant sent back a text message response.

25. On 09/18/18 at 04:00:38 P.M., Philip Russo sent Defendant a text message consisting of 11 words. Twenty-seven seconds later, Defendant sent back a text message response.

26. On 09/18/18 at 4:06:15 P.M., Philip Russo sent Defendant a text message consisting of 55 words. Seven seconds later, Defendant sent back a text message response.

27. On 09/19/18 at 07:02:08 P.M., Philip Russo sent Defendant a text message consisting of 13 words. Nineteen seconds later, Defendant sent back a text message response.

28. On 09/20/18 at 05:37:54 P.M., Philip Russo sent Defendant a text message consisting of 18 words. Thirty-three seconds later, Defendant sent back a text message response.

29. On 09/20/18 at 05:39:28 P.M., Philip Russo sent Defendant a text message consisting of 13 words. Forty-one seconds later, Defendant sent back a text message response.

30. On 09/20/18 at 5:52:45 P.M., Philip Russo sent Defendant a text message consisting of 12 words. Ten seconds later, Defendant sent back a text message response.

The Defendant testified in a manner that was inconsistent with his claimed severe learning disability and the Defendant demonstrated reading comprehension in answering numerous text messages in a manner that is inconsistent with his claimed disability.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were [*7]inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes Defendant was deceptive on this point. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

In another area of inconsistency of Defendant's testimony, he affirmed that he has several mental health issues with which he suffered on the date of the plea. Defendant even specifically testified that he was suffering from a panic attack on the date of the plea:

"Q: Prior to you walking into the courtroom before Judge Kahn, when you were there in front of her, how were you feeling at that time?

A: I couldn't breathe. I was having shortness of breath. I was having a panic attack. My heart was palpitating. I had fear and I wasn't able to think straight."

(Minutes of 04/09/21, Pg. 209, lines 6-12).

This Court assessed Defendant's testimony on this issue and found it to be logically inconsistent with other evidence. First, an eyewitness to this plea was Mr. Russo, who was standing right next to the Defendant. Mr. Russo did not observe any of the issues claimed by the Defendant:

"Q: Mr. Russo, did it appear Mr. M was having any difficulty understanding the questions Judge Kahn was asking?

A: No.

Q: Could you see any sign of tension and stress?

A: No.

Q: Could you see if the defendant's hands were trembling?

A: His hands were not trembling.

Q: Did you see If he had shortness of breath?

A: He had no shortness of breath.

Q: You knew him for over 20 years, would you believe able to observe, based on your experience, if he was in the middle of a panic attack?

A: I would.

Q: Did he appear to be in the middle of a panic attack?

A: He was not."

(Minutes of 04/16/21, Pg. 148, line 8 — Pg. 149, line 4).

Obviously, the direct observations of Mr. Russo undercut the claims by the Defendant.

Second, the minutes reveal that at no time did Judge Kahn stop the plea or make any observations on the record regarding medical issues the Defendant was experiencing. This Court believes that if the Defendant were having difficulty breathing as he testified, Mr. Russo would have observed this issue and Judge Kahn would have intervened to halt the plea allocution.

At no time during the plea allocution was Defendant unable to continue and his answers were responsive to the questions posed, which is inconsistent with his claim of having suffered a panic attack.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true? Was the testimony of the witness consistent or inconsistent [*8]with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes Defendant was deceptive on this point. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

In another area of inconsistency of Defendant's testimony, he affirmed that the anxiety and other mental health issues with which he suffers are longstanding in nature, existing for many years:

"Q: Mr. M, when we left off you had told us that you were diagnosed previously, I believe you had said either with depression or anxiety prior to 2018?

A: Yes.

Q: And depression and anxiety, when were you diagnosed with that, around when?

A: 2012.

Q And Mr. Russo, how long did he know your family for?

A: Twenty years I believe.

Q: Was he aware that you were diagnosed with depression and anxiety?

A: Yes.

Q: And how do you know that?

A: Because he knew my mom and he knows my whole family history."

(Minutes of 04/09/21, Pg. 4, line 10 — Pg. 5, line 13).

This Court assessed Defendant's testimony on this issue and found it to be logically inconsistent with other evidence. First, If the above testimony were fully accurate and not exaggerated, Defendant would include this on important documents with regard to his existing or prior mental or physical health issues. However, the above testimony of pre-existing mental health issues is directly contradicted by Defendant's responses on the Department of Probation questionnaire admitted as Exhibit 4 on the same date as his plea (August 20, 2018). Defendant filled out that document just minutes after the plea which he claims he entered while in a panic attack. However, in response to the question "If you have ever had any serious mental or physical health problems, please describe," Defendant wrote "None." This appears to be a direct refutation by the Defendant of the claimed mental health history.

This Court is aware that Defendant claims Mr. Russo filled out that probation form, but does not credit such testimony. Mr. Russo himself testified that Defendant filled out that form:

"A: Following all this occurring, we then walked together to the probation window, and I sat there with him, I assisted him in filling out the probation form. I think I put my phone number on there, possibility my name as well, I usually do that. And he handed — he got documentation that he needed after going to the probation window and we left together.

Q: When you say the probation window, where was that?

A: I believe it is on the third floor, if I'm not mistaken.

Q: Did you accompany Mr. M to the third floor probation window?

A: I did.

Q: Did you in fact fill out the probation questionnaire with your own handwriting or did he?

A: No, I believe he filled out the probation questionnaire.

Q: Did he ask you to help him understand any of the questions on the form?

A: No, he did not."

(See Minutes of 04/16/21, Pg. 153, line 21 — Pg. 154, line 18)

Even assuming, arguendo, that this Court believed Mr. Russo filled out the form, this Court does not find it credible that Mr. Russo would falsify the form by answering "none" to a question about his physical/mental health history.

Second, if the above testimony were fully accurate and not exaggerated, Mr. Russo would be able to confirm that he was aware for years that Defendant had these diagnoses. However, the above testimony that Mr. Russo was aware of these issues is directly contradicted by Mr. Russo himself:

"Q: And you had known him before that time, before the violation of probation, for something years, correct?

A: That's correct.

Q: And all that time did you know him to suffer from some kind of disability?

A: No, I did not.

Q: Did you know him to suffer from any debilitating anxiety disorder?

A: No, I did not."

(See Minutes of 04/21/21, Pg. 194, line 19 — Pg. 195, line 3)

This Court noted inconsistency between Defendant's claimed long-standing mental health issues and other testimony and the fact that Defendant denied having any such mental-health issues on the probation questionnaire. This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true? Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes Defendant was deceptive on this point. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

In another area of inconsistency, Defendant provided information to Dr. Acer in connection with evaluations on two different occasions, for two different purposes. In 2012, Defendant was evaluated by Dr. Acer when Defendant was seeking her approval for disability and to be diagnosed with illness sufficient to justify a disability determination. Dr. Acer testified about the purposes of this evaluation as follows:

"Q: And can you outline the context of the evaluation and its purpose?

A: Mr. M was referred to me through New York State Disability Determination Board for a consultative examination, psychiatric evaluation in reference to his application for [*9]SSI/SSD benefits."

(Minutes of 04/07/21, Pg. 10, lines 20 — 25).

The Defendant met with Dr. Acer for this 2012 evaluation for approximately 30 minutes and answered her questions. Following this evaluation, Dr. Acer issued a report, which was admitted as Exhibit D. Amongst the issues addressed on the evaluation were "legal history" and "drug and alcohol history." Defendant advised Dr. Acer that he had no legal history and had no drug and alcohol history.

This Court assessed Defendant's statements on this issue and found them to be logically inconsistent with other evidence. For instance, if the above statement were fully accurate, Defendant would have no drug history and would have no criminal history. However, Defendant himself testified at the hearing that, prior to his 2012 evaluation, he was convicted for possession of drugs, and completed a drug rehabilitation program. Defendant testified as follows regarding this conviction and rehabilitation:

"Q: Okay. In fact, in 2004 you had entered into a guilty plea in a similar courtroom to attempted criminal possession of a controlled substance, correct?

A: Um, yes.

Q: C felony?

A: Yes.

Q: You got five years probation?

A: Yes."

(Minutes of 04/09/21, Pg. 60, line 24 — Pg. 61, line 8).

[ ]

"Q: You had to report to a probation officer, correct?

A: Yes.

Q: You had to admit what you did in order to sort of get past the crime situation, right?

A: Um, I pleaded guilty and I went to outpatient for a year and a half of rehabilitation.

Q: And that was at Crossings, correct?

A: Yes.

Q: You successfully ..completed that program?

A: Yes."

(Minutes of 04/07/21, Pg. 66, lines 2 — 12).

Obviously, Defendant being convicted of a C felony in 2004 indicates that Defendant was being less than accurate in 2012 when he denied having a legal history. Additionally, Defendant being convicted of a drug offense in 2004, which required probation, and outpatient rehabilitation for 1.5 years indicates that Defendant was being less than accurate in 2012 when he denied having a drug/alcohol history.

These critically important inconsistencies cause the Court to conclude that Defendant lacks credibility. This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes that Defendant was deceptive and did not properly inform Dr. Acer in his 2012 evaluation, resulting in an erroneous evaluation. Those misrepresentations accrued to his benefit, rather than detriment in that they cast him in a better light than the true facts would bear out. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

In another area of inconsistency, Defendant provided information to Dr. Acer in 2020 in preparation for the instant hearing. In this evaluation, Dr. Acer spent an hour to an hour-and-a-half interviewing the Defendant, and conducted an additional personality assessment (See Minutes of 04/07/21, Pg. 19, lines 12-17). In that interview, Defendant discussed with Dr. Acer the probation sentence resulting from the above-captioned SCI, and the alleged criminal conduct underlying the violation of probation. Dr. Acer included a description of the Defendant's account in her evaluation, which was admitted as Exhibit E:

"As he was terrified by his attorney's assertions of jail time, he took the plea deal; however, several days after, the police raided his house finding two stun guns (in the original boxes, uncharged and therefore, harmless). This resulted in a violation of a condition of his probation."

(Exhibit E, Pg. 3)

Defendant made several assertions to Dr. Acer regarding the violation of probation including that 1) it resulted from police raiding his home, 2) the police only recovered two stun guns, 3) all weapons were inoperable and therefore 4) harmless.

This Court assessed Defendant's statements on this issue and found them to be logically inconsistent with other evidence. Instead of being the product of a "police raid," the Decision after Hearing issued on 01/28/19 described above in the Procedural history notes that Defendant's own probation officers were conducting a home search. Additionally, Judge Wilutis explained that weapons recovered and which formed the basis of the violation of probation were not simply 2 stun guns, but rather several different weapons:

"The officers then conducted a search of the home. While in the defendant's bedroom, Officer Anderson opened the top drawer of a night stand adjacent to the defendant's bed. Within that drawer, an ASP expandable baton which is typically used by law enforcement, brass knuckles, and a large stun gun were found. Officer Anderson then requested assistance from the Suffolk County Police Department. Subsequently, two smaller stun guns, a large machete, two baseball bats, a money counter, and a large sum of cash were discovered. The Suffolk County Police Department charged the defendant with four counts of Criminal Possession of a Weapon in violation of Penal Law §265.02(3) and two counts of Criminal Contempt in the Second Degree in violation of Penal Law §215.50(3)." (Judge Wilutis Decision after Violation of Probation Hearing, 01/28/19) (Emphasis added).

Moreover, Defendant's own text messages about the nature of the weapons found in his home, directly contradict the version he gave Dr. Acer, and confirm the account described by Judge Wilutis:

"On 09/19/18 at 9:21:41 P.M., Defendant texted: "Is there any way for them to take pictures of the Box and the and the knife so we know what it looks like in what they're talking about."

(Exhibit 1, Pg. 66 of 73).

"On 09/19/18 at 9:38:37 P.M., Defendant texted: "The sword that I had was a collector's edition knife from the movie it was in the Box from the movie and it was in a black case."

(Exhibit 1, Pg. 66 of 73).

Likewise, Philip Russo's text messages about the nature of the contraband found in Defendant's home confirm that Defendant's account to Dr. Acer were inaccurate:

"On 09/13/18 at 9:34:39 A.M., Philip Russo texted: "What do stun guns and batons have to do with the underlying case?? Nothing - they are trying to demonstrate that ur a criminal and not worthy of a break"

(Exhibit 1, Pg. 46 of 73).

Obviously, a police raid is different from the assigned probation officer making a home visit. Obviously, two uncharged, inoperable, harmless stun guns are different from an ASP expandable baton, brass knuckles, three total stun guns, a large machete, and two baseball bats. These significant inconsistencies further inform the Court's determination that Defendant lacks credibility.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes that Defendant was deceptive and did not properly inform Dr. Acer in his 2020 evaluation, resulting in an inaccurate evaluation, which accrued to his benefit, rather than detriment in that they cast him in a better light than the true facts would bear out. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

In another area of inconsistency, Defendant submitted to a personality assessment inventory ("PAI") in which he provided answers to Dr. Acer to allow her to assess his personality type (Minutes of 04/07/21, Pg. 78, line 4-11). According to Dr. Acer, the personality assessment inventory is an objective instrument, and she is able to draw conclusions about the abilities and disabilities of the responding patient. Based upon the answers given by the Defendant, Defendant's profile indicates that Defendant cannot stand up for himself.

As Dr. Acer testified in this regard:

"Q: Particularly, was there any indication in the PAI specifically that caused you to believe that Mr. M may be taken advantage of by a person of hostility?

A: The data that I obtained through the PAI which is an objective measure, indicated that his personality structure was such that his assertiveness was so low that he would have significant difficulty in standing up for himself even when justified.

Q: And did the PAI have any correlation to susceptibility to manipulation?

A: Yes, along the same lines. That specifically the person 's personality structure would [*10]be unable to assert themselves, especially directed towards anyone who was viewed as superior in any way or was trusted in any way or was hostile or aggressive in any way."

(Minutes of 04/07/21, Pg. 27, line 11 — Pg. 28, line 5) (Emphasis added).

Dr. Acer repeated that the Defendant, based upon the result of the personality assessment inventory, is incapable of standing up for himself in her testimony as follows:

"Q: With respect to the structure of his personality from the PAI as well as your individual clinical assessment, were you able to determine if he had any difficulties standing up for himself against authority?

A: Part of the result of the PAI indicated that Mr. M had significant difficulties with assertive communication. He tended, his personality structure, underlying personality structure was such that if he perceived an individual to be in a position of power or superior to him in. any way, he would have a lot of difficulty standing up and communicating effectively to that individual. Even when he was fully justified in questioning or disagreeing with someone, he was not — he's not able to do that.

Q: How about if an individual was putting him under pressure, would that impact him?

A: Absolutely. Coupled with all of the clinical syndromes that he had going on, panic, anxiety, depression, reading problems, then that, placed on top of the underlying personality structure would just render him incapable of making appropriate decisions, of standing up for himself even if he felt justified in doing so.

Q: From your evaluation of both the PAI and clinical analysis, are you able to determine how Mr, M would react to a person of hostility as to how he would react in that environment, being placed under pressure from a person of hostility?

A: He would back down and acquiesce to whatever it is that individual wanted him to do."

(Minutes of 04/07/21, Pg. 25, line 13 — Pg. 26, line 20) (Emphasis added).

This Court assessed the objective finding that based upon Defendant's answers to the personality assessment inventory, he is unable to stand up for himself, especially in the face of hostility or from a person that he trusts, and found them to be logically inconsistent with other evidence. If Defendant gave true answers to the personality assessment inventory, and the testimony by his own witness was valid, then Defendant would be unable to resist or argue with a person who is hostile or a person who he trusts. Obviously, the next issue is whether Mr. Russo is such a person who is either trusted by the Defendant, or hostile to the Defendant.

Defendant identified Mr. Russo as a person he trusts:

"Q: And at the time Phil Russo was representing you prior to your plea on August 20, 2018, did you trust him?

A: I totally trusted him."

(Minutes of April 9, 2021, Pg. 28, lines 17-20) (Emphasis added).

Indeed, Defendant repeatedly emphasized the extent to which he trusted Mr. Russo:

"Q: And you just signed them?

A: Yes, because I trusted him.

Q: No idea what they say?

A: I trusted him with my life. This is a guy I had a long relationship with. I believed in him. He knew my mother. He always emphasized my mother, she would want this, she would want that. I trusted him. I signed what he told me to sign. And he would say to sign a piece of paper with CD, whatever, I signed it.

(Minutes of April 9, 2021, Pg. 178, lines 14-20) (Emphasis added). (See Also, Minutes of April 9, 2021, Pg. 32, lines 11-16; Minutes of April 9, 2021, Pg. 33, lines 9-14, Minutes of April 9, 2021, Pg. 206, lines 5-13; See Also Exhibit 1, Pg. 65 of 73, 09/19/2018 6:55:41 P.M.).

Defendant also testified that Mr. Russo was being very hostile to him on August 20, 2018.

Q: He was yelling at you for an hour in the hallway?

A: Yes. He came in and out of this courtroom three to four times, and each time he would come out and he would take a break yell at me some more, come out of the courtroom, yell at me some more, come back in and out, that 's how it happened."

(Minutes of 04/09/21, Pg. 126, lines 15-21) (Emphasis added).

The evidence presented by Defendant casts Mr. Russo as a person Defendant trusts completely, and was extremely hostile to him on August 20, 20218. Therefore, based upon the answers given by the Defendant to the personality assessment inventory, and the expert testimony he offered, Mr. Russo is the exact kind of person to whom the Defendant would be incapable of opposing or challenging. However, the evidence sharply disagrees with this conclusion. This is decidedly contrary to the testimony of Defendant, Raymond M, and Phillip Russo.

Rather than presenting as unable to stand up for himself in face of aggression or being unable to say "no," Defendant himself testified that he responded to Mr. Russo yelling at him:

"Q: Can you outline for the Court how Mr. Russo's demeanor changed prior to you pleading guilty on August 20th?

A: This is the day of the plea?

Q: On August 20th, yes.

A: Well, at first when I seen Phil Russo he was welcoming , when I first seen him. And, you know, so everything was normal at that point, and then he and then he comes back out, goes into the court here and he starts — I'm sitting down and he's standing over me, directly over me and talking, you know, talking down, towards me, and at that point then when I told him I'm not taking the plea deal, I'm innocent, I'm not taking the plea deal, I'm not doing this, then he became very angry and vulgar and towards me and he started screaming down at me, and I'm sitting there and he's standing over me screaming down on my face.

Q: About how many times that day did you tell Mr. Russo that you weren't taking the plea deal?

A: 30 times, minimum.

Q: About how many times do you think you told Mr. Russo that you were innocent?

A: I must have told — that day or prior?

Q: That day, just that day.

A: That day, I must have told him about 25 to 30 times I'm innocent."

(Minutes of 04/07/21, Pg. 94, line 21 — Pg. 95, line 23) (Emphasis added).

Defendant testified that he was indeed able to refuse Mr. Russo "over and over" again:

"Q: And was your communication with Mr. Russo continuous or was it broken up for that hour?

A: It was broken up. He would scream at me, stand over and scream at me, and then he would come and then he would stop and then he would come back into the courtroom and then he would come back out again a little while later and I would tell him I'm not [*11]taking the plea deal again, over and over, then he would scream and scream at me, then he would come back into the courtroom again and then come back out again and do the same thing."

(Minutes of 04/07/21, Pg. 97, lines 13-23).

Nor does Raymond M indicate that Defendant responded with acquiescence as Dr. Acer insists would be Defendant's only psychological response, given his alleged personality assessment inventory, based upon the answers Defendant provided:

"Q: And what was being said between the two of them, what was your brother saying arid What was Mr. Russo saying?

A: Well, my brother told his lawyer: I don't want to do that deal, and he was referring to a plea deal. And his lawyer was — kept coming back at him, sometimes yelling louder, telling him about what was gonna happen that day.

Q: What did he say was gonna happen that day if he didn't take the plea?

A: Well — well, the lawyer would walk away and come back later and maybe ten minutes later and he would tell K listen. I can't represent you anymore if you don't go along with this.

Q: And did he make any representations about whether or not he would go to jail?

A: Yeah. He — the — his lawyer said you're gonna do seven years upstate.

Q: And um, did he — at that point in time what was your brother's response to Mr. Russo?

A: My brother told him I don't want to do this and he was saying I don't want to take the plea deal, my brother told him that numerous times. His lawyer kept walking away and coming back, but he wasn't happy."

(Minutes of 04/02/21, Pg. 29, line 10 — Pg. 30, line 10).

Indeed, Raymond M insists he observed his brother refuse Mr. Russo eight to-ten time (far less than Defendant's version of 30 times):

"Q: And if you can recall, about how many times did your brother tell Mr. Russo that he didn't want to take the plea deal?

A: Approximately I would say at least eight to ten times."

(Minutes of 04/02/21, Pg. 30, line 20 — Pg. 31, line 3).

Philip Russo confirms that Defendant was very capable of standing up for himself and disagreeing with Mr. Russo:

"Q: Did you say anything else?

A: The conversation continued. K continued to indicate that he was going — that he might want to take the case to trial, I continued to make the same or similar points to him about the risks and destroying his life, and, you know, and essentially how. I felt about sitting there, and the term that I used is taking a pot shot at trial, which is just basically a swing for the fences, relying on Russo, and not a heck of a lot of evidence behind you and taking my best swing You got a disposition in hand that could save your life and you want me to just take a swing for you in here? And he continued to say that he might want to take the case to trial."

(Minutes of 04/16/21, Pg. 139, lines 11-25)

Finally, this Court personally observed the Defendant respond under the civil but hostile questioning of cross-examination, and notes that Defendant was himself hostile in response — he did not acquiesce under the probing and uncomfortable inquiries of cross examination. He was able to say "no" and refuse to agree with his interlocutor repeatedly.

Obviously, the act of refusing and disagreeing with a trusted and hostile person approximately 30 times is very different and inconsistent with a personality assessment inventory that indicates a psychological incapability or inability to do so. In short, the inconsistent testimony quoted above shows that, accepting Defendant's expert witness testimony as accurate with regard to disabilities, either 1) Defendant performed the impossible and was able to refuse someone whom he is psychologically incapable of refusing, or 2) Defendant provided inaccurate information to Dr. Acer on the personality assessment inventory, leading to inaccurate conclusions which do not conform to the Defendant's actual self-admitted abilities.

To be very clear, this Court does not credit Defendant's claim of vociferous argument and protestations with Mr. Russo in the hallway, but simply notes that Defendant's testimony in this area is logically inconsistent with his own expert's assessment of Defendant's abilities and therefore undercuts his credibility.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that such inconsistencies may impact credibility, which states:

"Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case? [ ] You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?"

This Court concludes that Defendant was deceptive in providing answers to the personality assessment inventory, resulting in an inaccurate evaluation, which accrued to his benefit, rather than detriment in that they cast him in a better light (with respect to his theory of the hearing) than the true facts would bear out. As a result, the above described inconsistencies in Defendant's testimony leads this Court to discredit his testimony.

While the subject plea took place on August 20, 2018, this Court did not receive any indication about alleged irregularities or problems with the plea until October 15, 2018 - fifty-six days days after the plea.

During the Course of the hearing, evidence was presented that a single conversation between the Defendant and Mr. Russo originated the concept that Defendant had mental issues which prevented him from being able to understand the terms and conditions of probation, as a basis to defend against the Violation of Probation proceeding. Prior to this strategy session, there was no indication of any mental issues that interfered with the plea, nor had any allegation been made of coercion, terror, etc.

Mr. Russo testified about this conversation as follows:

"Q: Does there come a point in time before you read that text message, does there come a point in time that you have a conversation with Mr. M about anything psychiatric in nature?

A: I did have a conversation with Mr. M at my office. We were sitting together, and we were trying to formulate a defense for this indefensible violation of probation, I was literally grabbing at straws with him, in order to try and find something that we could that we could find to make use of against this probation officer. I know K had been involved in an automobile accident, I believe it was in Las Vegas, and the question came out if [*12]there was anything physically or mentally that could possibly have prevented him from being able to say that I didn't understand what was going on here or anything like that. Have you ever had any psychological or psychiatric treatment I asked him about, anything like that. He said, well I was evaluated once in 2012, 2013. So I said, you know, get it into me, let's try and make use of it, and subsequently he brought it in, and the hope was that that could also be made use of at the violation of probation hearing. I think my goal was to try and make use of that in terms of his understanding of the violation of probation, the probationary conditions.

Q: How were you going to use his seeing a psychologist in 2012 or '13, in your violation of probation hearing?

A: At that point, it was going to be a stretch no matter what, but, you know —

Q: What was your intention, what were you going to argue to probation or to a judge?

A: I was going to try and make the argument that for some reason maybe he couldn't have understood the conditions and that's why he violated them.

Q: Did he explain to you at any point in time that he had a learning disorder?

A: When we went over that, I don't know specifically. I don't recall specifically what was in that particular document. I don't know if a learning disorder was presented, but anything that was in there might, primary recollection is that it had to do with anxiety."

(Minutes of 04/16/21, Pg. 192, line 18 — Pg. 194, line 18).

This conversation is corroborated by Exhibit 1, in that Defendant texted the following to Philip Russo on 09/18/18 at 04:06:22 P.M. — "I have documentation from a Psychiat [sic] that stating that I'm not in right mental health to be making these decisions from 2012."

There is no indication the Defendant intended to challenge the voluntariness of his plea or propriety of conviction until after this conversation with Mr. Russo. The quoted colloquy underscores Defendant's motive to exploit any diagnosis of mental or psychological impairments in an effort to vacate his plea and void his conviction.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that a demonstrated motive to lie may impact credibility, which states:

"You may consider whether a witness had, or did not have, a motive to lie. If a witness had a motive to lie, you may consider whether and to what extent, if any, that motive affected the truthfulness of that witness's testimony. If a witness did not have a motive to lie, you may consider that as well in evaluating the witness's truthfulness"

This Court concludes that the conversation quoted above, in which the Defendant, fifty-six days after the plea, for the first time, explored possible theories of invalidating the plea based upon mental health issues, demonstrate a motive to lie that leads this Court to discredit his testimony.

It is the Defendant's CPL §440 application to vacate the conviction which resulted in the hearing at which Defendant testified. He is an interested witness as a matter of law in this proceeding, as he has an interest in the outcome of the proceeding.

This Court is guided by the New York Pattern Jury instructions on "Credibility" that the Defendant's interest in the outcome of the proceeding may impact credibility, which states:

"You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. A defendant who testifies is a person who has an interest in the outcome of the case. You are not required to reject the [*13]testimony of an interested witness, or to accept the testimony of a witness who has no interest in the outcome of the case. You may, however, consider whether an interest in the outcome, or the lack of such interest, affected the truthfulness of the witness's testimony."

Particularly in this case, where only after the Defendant took his plea, received the benefit of probation, and then violated probation, did Defendant challenge the integrity of the conviction, Defendant has a definite interest in the outcome of the proceeding and this Court finds him less credible as a result.

Dr. Acer and Dr. Zottoli provided expert witness testimony at the hearing. However, each of them relied upon information provided by the Defendant in arriving at each of their conclusions.

Dr. Zottoli described the data upon which she based her opinion in this case as derived from her interview of the Defendant and her review of Dr. Acer's reports as follows:

"Q: How long was the conversation you had with Mr. M on the telephone?

A: I spoke to him 40, 45 minutes.

Q: And that's the entirety of the information that you had yourself from Mr. M?

A: Apart from his affidavit, yes.

Q: You read Dr. Acer's report on her evaluation of him from 2012?

A: I did.

Q: And did you know the defense had him examined again in July 2020, you saw that second exam?

A: Yes, I read both..

Q: So again, at that point that's all, you have no personal knowledge about that information, that's all self-reported from Mr. M to Dr. Kathleen Acer; correct?

A: I don't know how she — she did do some objective testing I read in her report, she did some objective testing, but I do not know how she arrived at her conclusions. His presentation on the phone was consistent with her presentations, but I can't opine further than that."

(Minutes of 04/02/21, Pg. 156, line 11 — Pg. 157, line 8).

Dr. Acer described the data upon she based her opinion in this case as derived from her interviews of the Defendant and her administration of a personality assessment inventory to the Defendant as follows:

"Q: The information that you had in making your assessment on 7/28 of 2020 was information that Mr. M gave to you that day, correct?

A: I had my prior report and I had data, objective data from the PAI.

Q: Correct. All the information into a PAI, given into the report, is self reported by the patient?

A: That's correct."

(Minutes of 04/07/21, Pg. 78, lines 4 — 12).

"Q Based on the information that K.M. provided to you, you were of the opinion that on the day of the plea he was suffering from an anxiety and panic disorder, correct?

A: That's correct."

(Minutes of 04/07/21, Pg. 64, lines 17 — 21).

As described more fully above, this Court finds the Defendant to lack credibility. Thus, [*14]while the testimony provided by Dr. Zottoli and Dr. Acer was interesting, they reached conclusions based upon inaccurate or incomplete information, and therefore this Court does not credit the conclusions offered by these witnesses. This Court specifically does not find that the expert witnesses intentionally testified falsely. Rather, to the extent they based their opinions upon information provided from an untrustworthy source, those opinions themselves are consequently tainted and untrustworthy.

This Court will now address the first basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to adjourn the plea until he had reviewed with the defendant, or investigated the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt.

To succeed on this, and each other claim, Defendant must first prove the existence of the facts in support of the claim by a preponderance of the evidence. If thus established, the Court must then analyze whether such established facts warrant the relief sought.

Much of the testimonial and documentary evidence on this issue contradicts Defendant's claim on this basis. While this Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above, this Court notes that Defendant testified that he never listened to the recording, nor was offered he the chance to do so:

"Q: Mr. Russo told you several times that there was a controlled phone call, two, on a disk, of you and [A.], and you said I don't want to listen to them, I know what they say. Yes or no?

A: No.

Q: That's not true ?

A: I never said I did not want to listen to that CD.

Q: Did you know about the calls?

A: Yes, he came out with CD into the hallway to me and my brother, and he said, and I said — he said do you have go out to your car and listen to the CD, and me and my brother told him, I'm in his car, we don't have a CD player, and that's what happened."

(Minutes of 04/09/21, Pg. 167, line 20 — Pg. 168, line 10).

Indeed, Defendant claims that he first learned about the CD recordings on the date of the plea (August 20, 2018):

"Q: And the day of the guilty plea on August 20, 2018, was that the first time that you heard about the CD?

A: Yes."

(Minutes of 04/09/21, Pg. 19, lines 2—5).

Defendant further claimed that Mr. Russo told him about the CD, described what was on the CD, and offered to have the Defendant listen to the CD.

"Q: Particularly when you were in the courthouse hallway that day, the day of the plea, do you remember Phil Russo having a CD in his hand?

A: Yes.

Q: What if anything did Phil Russo say about the CD and how if in any way did you respond?

A: He came out with a CD in his hand and he said, he said it was a call, a recorded call between me and [A.], and he said, he said, uh, he said, uh, you want to listen, I said, yes, he said, he said go out to your car and listen to it, and I said I'm in my brother's car, we don't have a CD player, there's no way for me to listen to it. And I — and then, um, and then I said can you postpone it, he said no, it doesn't matter anyway because you're taking a plea deal.

Q: Did Mr. Russo have you sign a CD indicating that you were not going to listen to it?

A: He had me sign a CD, yes.

Q: What did he say. to you in connection with signing the CD, if anything?

A: I don't recall exactly what he said. He just told me to sign it. I was just doing exactly what he told me do and I signed it."

(Minutes of 04/09/21, Pg. 17, line 14 — Pg. 18, line 13) (Emphasis added).

Raymond M's testimony differed sharply from the Defendant regarding Philip Russo's conversation about this CD. While Defendant testified that Mr. Russo described the nature of the contents of the CD, Raymond M testified that Mr. Russo did not describe what was on the CD at all, and moreover, that Mr. Russo himself had not listened to the CD:

"Q: And prior to your brother taking a plea did you see Mr. Russo with a C.D.?

A: Prior — yes.

Q: And did Mr. — and did Mr. Russo say anything to your brother about the C.D. prior to taking a plea?

A: Did he say anything about it?

Q: Yeah did he say anything about the C.D.?

A: Yeah. He said — well, he came out in the hallway five minutes before we went — K was going in and he said I just got this tape from the A.D.A. And my brother said what is that? And then he goes ah, it's not important, don't worry about it. So my brother said did you listen to it? He said no, again his lawyer said no, don't worry about it, it's not important. And then my brother said could you postpone this so you could listen to that? And he says no, I can't."

(Minutes of 04/02/21, Pg. 35, line 8 — Pg. 36, line 2) (Emphasis added).

Defendant's above claim that he first learned about the call on August 20, 2018 directly contradicts the testimony of Philip Russo, who indicated that he learned about the call between June and August (at least two weeks before the plea) and listened to it in advance of the plea date:

"Q: Does there come a point in time that you become aware of a controlled phone call that was recorded?

A: That's correct.

Q: How did you become aware of that?

A: Dana Castaldo indicated to me they did have a controlled call.

Q: Did you listen to the call?

A: I did.

Q: Do you know when she informed you that they had a controlled call?

A: Somewhere between 6/26 and 8/3, I can't be sure.

Q: Okay. So, how was it that you listened to it?

A: I was out here — we had went up to the DA's office and listened to it there, myself and Dana.

Q: In which location?

A: Fifth floor, this building.

Q: In Riverhead. Whose idea was it to do that?

A: It was my idea. We had talked about it, and I just happen to be out here, she was here on - I was here on another case, and we were free, and said let's get it done now.

Q: Did you ask her for a copy of the call?

A: I did not ask her for a copy at that time. Again, same situation, that would not be forthcoming at the felony complaint stage. The procedure would be for the District Attorney's office to play us a disc or tape or surveillance. It would not be provided in the form of a disc at the felony complaint stage.

Q: And did you ever offer — did you ever explain to Mr. M that there was the existence of a controlled call?

A: Yes, he was fully aware of it. He believed there was a controlled call from the very outset.

Q: Can you tell us how you have that knowledge?

A: At the beginning of the case, when I was literally over his house, he had indicated to me that he had received two calls from [A.], but he had believed that the — as he said, that the cops were listening in.

Q: And did you offer him an opportunity to listen to the call?

A: I asked him, after I had heard the call, if he was — if he wanted to make an appointment and go to the District Attorney's office with me and listen to it, and he indicated that he knew what was the — that occurred during those conversations.

Q: So he denied your request?

A: That's correct.

Q: Did you in fact listen to the entire call?

A: I did.

Q: Is there more than one call?

A: There were two calls."

(Minutes of 04/16/21, Pg. 78, line 19 - Pg. 81, line 9) (Emphasis added).

While Defendant claimed that Mr. Russo had never listened to the recorded call, Mr. Russo testified in detail about the contents of the recorded calls, thus establishing that he indeed had listened to the calls:

"Q: Did you in fact listen to the entire call?

A: I did.

Q: Is there more than one call?

A: There were two calls.

Q: What if any conclusion did you draw with respect to what you heard on the calls? I thought they could be played both ways as inculpatory and exculpatory.

Q: Were they a concern to you with respect to the proof in the case?

A: They were a concern to me.

Q: Why was that?

A: On the first call, Mr. M's words were slurred, which had me immediately hearkening back to his statement relating to, maybe I laid down with her when I was drunk. So it sort of corroborated that situation. Additionally, he moved off his position, as [A.] pressed him, he was originally — I believe in the call, in that position where he was sitting next [*15]to her with his arm around her, and as [A.] pressed him on the issue, he suddenly was just on the bed with her. And if my recollection serves me correctly, towards the end of the call, he mentioned he was in a doorway. So, you know, I was troubled by it at the same time. And then there was one other statement where, in the second call, where he indicates, unprovoked, there was no accusation, he just indicates out of the blue, you know, I'm not a child molester. You know, I 'm not a child — are you accusing me of being a child molester? Do I need an attorney, something to that effect. But he also — there are also helpful comments on those tapes; he professed his love, he professed the fact that he couldn't understand — why, you know, it wouldn't make any sense that [I.] would complain about being molested. But I believe [A.] was the other daughter's name, that she wouldn't — as he said, he professed love for them, told them he would never do it. He was adamant, at some stages,. but there were definitely, as I described earlier, there was some issues that I thought would be troubling."

(Minutes of 04/16/21, Pg. 81, line 5 — Pg. 83, line 2).

Indeed, Mr. Russo further testified that he discussed the content of those recordings with the Defendant prior to the planned Grand Jury presentation (17 days before the date Defendant claimed he first learned about the CD):

"Q: So, prior to Grand Jury schedule, did you go back to Mr. M and tell him what you had heard on the calls?

A: We did discuss what was — before the Grand Jury we discussed what was on there. I did indicate to him that he should stay consistent with his indication of what the events in question were.

Q: Did he agree with you that he would stay consistent with what the events were as were depicted on the calls?

A: He did."

(Minutes of 04/16/21, Pg. 83, lines 3 - 14).

Mr. Russo testified that on the date of the plea he offered to let the defendant listen to the CD, but the Defendant refused to do so, as he already knew the contents as a participant of the call:

"Q: Was Dana Castaldo in the hallway?

A: Dana Castaldo came down the hallway with a disc of the controlled call and walked up to us, while me and K — and I could still remember, that we were in the mist [sic] of our conversation and we stopped, because Dana was right there. And Dana handed us the disc and she said, if you wish to listen to this, I will adjourn the plea. And so I turned to K, and I said had to him, K, you could listen to the disc, you could take an adjournment, or we can go in, or we could take — we would have to further converse about it. He hadn't reached any decision in our discussion.

Q: Was Dana Castaldo standing there when you had that conversation or had she walked away?

A: She gave us the — she gave us the disc, and then she subsequently walked away. I believe she walked into the courtroom and then we continued our discussion.

Q: Did he say anything to you about the disc?

A: He told me he knew what was on it and didn't need to listen to it.

Q: Did you offer an opportunity to adjourn the case to listen to it?

A: Yes.

Q: What did he say?

A: I told him, K, we could walk out of here, if you wish, and we could listen to the — you could listen to the tape, consider this whole situation further.

Q: Did he mention anything about listening to it in his car?

A: I don't recall whether he was going to think about listening to it in his car, maybe something to the effect that he couldn't listen it then, I don't know if his car was equipped with a CD player, but the bottom line is if he wished to, he could have listened to that controlled call, and he could have walked out of the building that day."

(Minutes of 04/16/21, Pg. 143, line 15 — Pg. 145, line 8) (Emphasis added).

Moreover, after the plea was concluded, the Defendant agreed to sign the CD jacket which stated that he had been offered to listen to the CD but refused:

"Q: Did Mr. M say anything to you in the hallway?

A: When we walked out of the courtroom, we moved to the side. I believe Ray then departed. And then at that point in time, I told K, that K, I don't want any misunderstandings here. I gave you a great deal of documentation, we are going to go over it now, and I'm going to have you indicate whether you received these documents or not.

Q: And what happened?

A: I then proceeded to show him every document, including, including the controlled call, and I asked him if he had received these items. I asked him on the controlled call if he had denied the opportunity to listen to it. I wrote out on that particular document that — that particular controlled call jacket, that he was given that opportunity, and then we proceeded to review."

(Minutes of 04/16/21, Pg. 152, line 7 — Pg. 153, line 3).

Exhibit 5 is a copy of the CD jacket of the controlled call, which contains handwriting which states "Received 08/20/18 from Castaldo. Offer to listen. Indicated P/C when I was called w/cops outside." This quote was followed by the date 08/20/18, and the Defendant's signature, which Defendant acknowledged was his true signature. See Minutes of 04/09/21, Pg. 171, line 11. This document signed by the Defendant appears to directly contradict the above-testimony of the Defendant, and further supplements the reasons this Court does not credit the Defendant's testimony in "PART 3 — CREDIBILITY DETERMINATIONS" above.

On this issue of signing of the paper confirming that Defendant had the opportunity to listen to the CD, Defendant testified as follows:

"Q: Sir, you're a mortgage banker, You sign documents that you don't know what it says?

A: Phil Russo presented numerous documents in front of me, sign, sign, sign, sign.

Q: And you just signed them?

A: Yes, because I trusted him.

Q: No idea what they say?

A: I trusted him with my life. This is a guy I had a long relationship with. I believed in him. He knew my mother. He always emphasized my mother, she would want this, she would want this. I trusted him. I signed what he told me to sign. And he would say to sign a piece of paper with CD, whatever, I signed it."

(Minutes of 04/09/21, Pg. 178, line 10—23).

As more fully shown above, Defendant has failed to establish, by a preponderance of the evidence, that plea counsel "failed to adjourn the plea until he had reviewed with the defendant, [*16]or investigated the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt" as alleged in Basis #1, and therefore the application to vacate the conviction on this basis is denied.

This Court will now address the second basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed adequately to explain the legal effect of the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt.

Much of the testimonial and documentary evidence on this issue contradicts Defendant's claim on this basis. While this Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above, this Court notes that while Defendant claimed that Mr. Russo had never listened to the recorded call, Mr. Russo testified in detail about the contents of the recorded calls, thus establishing that he indeed had listened to the calls and discussed their significance with the Defendant:

"Q: Did you in fact listen to the entire call?

A: I did.

Q: Is there more than one call?

A: There were two calls.

Q: What if any conclusion did you draw with respect to what you heard on the calls? I thought they could be played both ways as inculpatory and exculpatory.

Q: Were they a concern to you with respect to the proof in the case?

A: They were a concern to me.

Q: Why was that?

A: On the first call, Mr. M's words were slurred, which had me immediately hearkening back to his statement relating to, maybe I laid down with her when I was drunk. So it sort of corroborated that situation. Additionally, he moved off his position, as [A.] pressed him, he was originally — I believe in the call, in that position where he was sitting next to her with his arm around her, and as [A.] pressed him on the issue, he suddenly was just on the bed with her. And if my recollection serves me correctly, towards the end of the call, he mentioned he was in a doorway. So, you know, I was troubled by it at the same time. And then there was one other statement where, in the second call, where he indicates, unprovoked, there was no accusation, he just indicates out of the blue, you know, I'm not a child molester. You know, I 'm not a child — are you accusing me of being a child molester? Do I need an attorney, something to that effect. But he also — there are also helpful comments on those tapes; he professed his love, he professed the fact that he couldn't understand — why, you know, it wouldn't make any sense that [I.] would complain about being molested. But I believe [A.] was the other daughter's name, that she wouldn't — as he said, he professed love for them, told them he would never do it. He was adamant, at some stages,. but there were definitely, as I described earlier, there was some issues that I thought would be troubling."

Q: So, prior to Grand Jury schedule, did you go back to Mr. M and tell him what you had heard on the calls?

A: We did discuss what was — before the Grand Jury we discussed what was on there, [*17]indicate to him that he should stay consistent with his indication of what the events in guestion were.

Q: Did he agree with you that he would stay consistent with what the events were as were depicted on the calls?

A: He did."

(Minutes of 04/16/21, Pg. 81, line 5 — Pg. 83, line 14).

No further credible evidence was offered in support of the claim that Mr. Russo failed adequately to explain the legal effect of the controlled call. No evidence was offered as to what appropriate legal instruction would be with regard to such material.

Defendant failed to establish, by a preponderance of the evidence, that plea counsel "failed adequately to explain the legal effect of the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt." as alleged in Basis #2, and therefore the application to vacate the conviction on this basis is denied.

This Court will now address the third basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to fully investigate the use of mental health professionals to challenge the victim's testimony.

This Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above. Other testimony offered in support of this basis includes the testimony of Philip Russo, and Dr. Favaro.

The defense called Dr. Favaro, an expert in psychology and issues related to child sex abuse. He offered no opinion testimony specifically on the factors present in this case, but rather testified in general terms about factors he considered important when evaluating a sex abuse allegation.

Philip Russo testified that he had not yet hired or consulted with any experts in any field with regard to the above-captioned case, and that he did not need to do so at the early stage of the proceedings, since Defendant had not yet been indicted. Mr. Russo indicated that he consulted with his wife, who is experienced in the fields of marital and family law. Mr. Russo addressed several issues with his wife relative to investigating potential defenses:

"Q: What did you discuss with your wife about this case?

A: I discussed the nature of the statement, :what the motivations for children to lie may be. If living situations could interfere with their ability to tell the truth. I asked her about, you know, her experiences with the specificity of statements. I asked her the — you know, what her experience was with immediate outcry situations. I asked her if — in her experience, if the children is going to makeup a story, would 4 a.m. be the time to basically put a master plan into action? And these discussions effectively went on for the better part of two and-a-half months."

(Minutes of 04/16/21, Pg. 50, line 20 — Pg. 51, line 10).

Defense counsel claims that the failure to retain or consult with experts such as Dr. Favaro constitutes ineffective assistance of counsel. To show that Mr. Russo was not familiar with these terms, Mr. Russo was cross examined about whether he knew the definition of the technical terms used by Dr. Favaro, and did not. However, this argument that Mr. Russo's failure to consult with experts, and failure to define technical terms shows inadequate [*18]preparation or representation relies upon two pre-suppositions: 1) Mr. Russo was not already aware of the concepts presented by Dr. Favaro, and 2) that Mr. Russo was unable to effectively discuss these issues with his client or the prosecution. The evidence presented at the hearing refutes both of these pre-suppositions.

For example, with regard to the factors of "parental influence" and "gatekeeping," while Mr. Russo was unable to identify the meaning of the technical terms on cross-examination (Minutes of 04/16/21, Pg. 222, line 14 — Pg. 223, line 14), he presented the relevant issues to the People and to the Defendant in text messages, indicating he was actually familiar with the concepts (if not the technical terms).

To illustrate, Dr. Favaro defined parental influence as follows:

"Q: Can you outline what parental influence is?

A: Yes. It's basically how — I mean, every parent influences every child. I mean, that's pretty much the job of a parent, is to influence their child. But with respect to the type of work that I do, it's usually — it usually goes to how the parent influences the child vis-a-vis their relationship with the other parent."

(Minutes of 04/09/21, Pg. 241, line 22- Pg. 242, line 6) (Emphasis added).

Dr. Favaro defined gatekeeping as follows:

"Q: Particularly as it relates to child sex abuse, can you outline gatekeeping and what import it may have?

A: There's two types of gatekeeping. There's protective gatekeeping and malicious gatekeeping. And a parent who is very concerned, very worried, you know, could have concerns about sex abuse just because they're protective, okay, or because — I mean, in the last big case that I did, a child was videotaped by her mother and she was touching her private area while she was watching her TV, and the mother immediately jumped to the conclusion that the child was sexually abused by her father. The intent of the mother was to be protective, okay, because she saw something that she thought was relevant to harm that might befall her daughter. Malicious gatekeeping is where somebody conspires to construct an allegation to toxify a relationship between a parent and a child."

(Minutes of 04/09/21, Pg. 240, line 10-Pg. 241, line 5) (Emphasis added).

Mr. Russo sent a letter to the prosecutor dated May 17, 2018, admitted as Exhibit 9, showing that Mr. Russo clearly was aware of the related issue of "parental influence" and "gatekeeping" (as described above by Dr. Favaro) and demonstrated his understanding of the issue as follows:

"K had already planned a vacation where he was going to ask [I.]'s mother, [A.], to marry him. These allegations are inconceivable to K, and we have discussed the fact that there exists significant motivation for [I.] to make up this story. Additionally, [I.]'s present living situation adds credence to the fact that these allegations are not truthful. I apologize for being kryptic, but if your office insists on presenting and K insists on testifying at the Grand Jury, I simply cannot let the "cat out of the bag" at this point. In order to avoid this prospect, I simply request that you ask [I.]'s mother if there is any reason why [I.] would choose to make up such a story and if anyone else has ever spoken to her about such heinous acts. We believe that [A.] will honestly tell you what the basis to lie is. There's a lot going on in this child's life right now including an interesting dynamic with the biological father. I had an interesting "dynamic" with the biological father after Court."

(Exhibit 9, Pg. 1-2) (Emphasis added).

Likewise, in a letter to the prosecutor dated August 2, 2018, admitted as Exhibit 11, Mr. Russo showed that he understood the concept of parental influence, and how it could impact this case:

"I am aware that [I.] has significant motivation to fabricate this allegation that has already destroyed my client's life. He lost his wife and family to be, for goodness sakes!!! My wife practices almost exclusively in family court and in the matrimonial arena, and if told you what we hear and see daily, as to young children routinely manufacturing adult-like stories, for the benefit of one parent or the other, you would literally fall over."

(Exhibit 11, Pg. 1) (Emphasis added).

In any event, importantly, Mr. Russo indicated that he had not foreclosed the use of experts for the defense of this matter. Rather, Mr. Russo indicated that if the case moved forward past indictment, he would have potentially consulted or retained experts if appropriate to do so:

"Q: In terms of this case, had this case proceeded to trial, whether on the felony level or misdemeanor level, would you have consulted or hired an expert potentially?

A: If I believed that it was going to assist our case, I would have hired an expert. I didn't think there was any basis to bring an expert in. I would have that discussion with K."

(Minutes of 04/16/21, Pg. 74, lines 5-13).

To properly assess Defendant's claim of ineffective assistance of counsel, this Court first notes the presumptions and standards to be applied.

This Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy (Strickland v. Washington, 466 U.S. 668, 671 [1984]). New York caselaw echoes this presumption (See People v. Honghirun, 29 NY3d 284, 289 [2017]) ("Under both standards, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy"); (See also People v. Finch, 199 AD2d 278, 278, 604 N.Y.S.2d 222, 222 (App. Div. 2nd Dept. 1993) ("In order to prevail on a claim of ineffective assistance of counsel, the defendant must overcome the strong presumption that defense counsel rendered effective assistance").

To establish a claim of ineffective assistance of counsel under the New York Constitution, a defendant must show that he or she was not afforded "meaningful representation" based upon "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation" (People v Baldi, 54 NY2d 137, 147 [1981].) "Our cases, however, agree with Strickland on the first prong" in that "'counsel's efforts should not be second-guessed with the clarity of hindsight' " and the defendant is not entitled to perfect representation (People v Turner, 5 NY3d 476, 480, 840 NE2d 123, 806 NYS2d 154 [2005], quoting People v Benevento, 91 NY2d 708, 712, 697 NE2d 584, 674 NYS2d 629 [1998]).

The nature of the disposition also impacts the scope of review. In particular, by pleading guilty, a Defendant forfeits "appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea and sentence negotiation" People v. Bennett, 115 AD3d 973 (App. Div. 2nd Dept.). Therefore, the ineffective assistance of counsel review is limited to that which directly involve the plea and sentence.

A series of Appellate Division, Second Department cases have clearly established that an attorney's decision on whether to retain and call an expert at trial is tactical, and the election not to do so should not be second-guessed.

As the Appellate Division, Second Department stated in People v McDonald, 79 AD3d 771 (App Div. 2nd Dept, 2010):

"Furthermore, contrary to the defendant's contention, defense counsel's performance was not rendered ineffective because she failed to retain and call an expert witness on the topic of eyewitness identifications. Under the circumstances of this case, counsel's decision to attack the reliability of the eyewitness identification through cross-examination was a legitimate trial tactic which should not be second-guessed."

As the Appellate Division, Second Department similarly stated in People v. Daniels, 35 AD3d 495, 496 (App. Div. 2nd Dept, 2006):

"In addition, defense counsel's performance was not rendered ineffective solely because he failed to hire an independent expert to analyze a recovered palm print. As counsel delivered effective cross-examinations and arguments to mitigate the weight to be given to the recovered print and to develop the possibility that the print was left there casually rather than during a crime, such trial tactics should not be second-guessed."

As the Appellate Division, Second Department similarly stated in People v. Baston, 181 AD2d 786, 787 (App. Div. 2nd Dept. 1992):

"At bar, defense counsel's decision to focus on the weaknesses in the People's proof against the defendant and not to present an expert on crack cocaine intoxication constituted a legitimate trial strategy."

As the Appellate Division, Second Department similarly stated in People v. Diaz, 131 AD2d 775, 776 (App. Div. 2nd Dept. 1987):

"The failure of counsel to call an independent forensic expert was not error. Counsel conducted an extensive cross-examination of the People's expert and got her to concede that she was not certain of various facts to which she had testified. Thus, the failure to call an independent expert is nothing more than a trial tactic which should not be second-guessed

The complained-of deficiency here is speculative in that there was no victim's testimony to be challenged. In the absence of the Defendant's plea, eventually a trial would be held, at which, speculatively, the victim's testimony would first be subject to challenge. At that future time, Defense counsel would have the ability, armed with whatever information or witnesses he prepared, to rebut the victim's testimony. Indeed, Mr. Russo testified that as he prepared for trial, he would retain or consult with experts, as appropriate.

Defendant failed to establish, by a preponderance of the evidence, that plea counsel "failed to fully investigate the use of mental health professionals to challenge the victim's testimony" as alleged in Basis #3, and therefore the application to vacate the conviction on this basis is denied.

However, even assuming, arguendo, that Defendant had established the facts in support of this claimed basis, there is insufficient evidence presented by the Defendant to suggest that such a failure prior to the Grand Jury to retain or consult with an expert in this case would constitute ineffective assistance of counsel. Defendant has failed to establish that plea-counsel's alleged failure to consult or retain with experts are not simply strategic in nature. Indeed, In many instances, cross-examination of the People's expert will be sufficient to expose defects in [*19]an expert's presentation (See Harrington v Richter, 562 US 86, 111 [2011]). "As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v Benevento, 91 NY2d at 712-713). For the reasons stated above, the application to vacate the conviction on this basis is denied.

This Court will now address the fourth basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to conduct any investigation into the credibility of the victim or review the physical evidence in this case.

This Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above. Other testimony offered in support of this basis includes the testimony of Philip Russo.

Defendant offered no credible evidence in support of the claim that Mr. Russo failed to conduct an investigation into the credibility of the victim.

Defense counsel's argument with regard to physical evidence is that Mr. Russo failed to review with the Defendant the significance of the lack of evidence in this case which supported the complaint.

In the closing of the hearing, defense counsel put it this way:

"The attorney failed to bring to the client's attention the weight to afford no physical evidence in any potential trial. Besides not weighing any trial option, the weaknesses of the Government's case, he never advises in writing, verbally or otherwise/ to sit the client down to say, listen, the fact that they don't have DNA, the fact that they don't have physical corroboration of your interest in children, the fact that you are a person that has lived a law abiding life, the fact that this allegation is completely anomalous, the fact that in this case there are all these impractical claims of how the story rolls about, and all the issues surrounding behavioral issues of the child, the breakdown of the relationship three months prior to the allegation, the lack of DNA evidence in an area where you might predict it, they can argue no way you would get DNA. They might call experts who come in, and say, hey, you wouldn't get DNA off of that. I don't care. The absence of evidence is reasonable doubt. That's something that was never gone over."

(Minutes of 04/28/21, Pg. 101, line 16 - Pg. 102, line -17).

But this position ignores the testimony of Mr. Russo on this issue, which essentially matches the assessment of defendant's current attorney quoted above:

"Q: When Dana Castaldo told you about the scratch on her vagina, what if any response did you have?

A: I thought it was, you know, great news for us. I mean she could have obviously scratched herself, and with no DNA, I thought it was — it was a positive in our regard.

Q: Did you convey the information to the defendant?

A: I did.

Q: And what if any response or reaction did he have?

A: My recollection is that K was happy with that, but that is what he expected. We had talked about having nothing, so to speak, that was the terminology, and this supported our case, our position."

(Minutes of 04/16/21, Pg. 56, line 8 - 24).

While Mr. Russo did not retain an expert with regard to the scratch, he did discuss the significance of the existing physical evidence with the Defendant.

Defendant failed to establish, by a preponderance of the evidence, that plea counsel "failed to conduct any investigation into the credibility of the victim or review the physical evidence in this case" as alleged in Basis #4, and therefore the application to vacate the conviction on this basis is denied.

However, even assuming, arguendo, that Defendant had established the facts in support of this claimed basis, there is insufficient evidence presented by the Defendant to suggest that such a failure prior to the Grand Jury to retain or consult with an expert in this case would constitute ineffective assistance of counsel. Defendant has failed to establish that plea-counsel's alleged failure to consult or retain with experts are not simply strategic in nature. Indeed, In many instances, cross-examination of the People's expert will be sufficient to expose defects in an expert's presentation (See Harrington v Richter, 562 US 86, 111 [2011]). "As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v Benevento, 91 NY2d at 712-713). For the reasons stated above, the application to vacate the conviction on this basis is denied.

This Court will now address the fifth basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was the product of ineffective assistance of counsel in that his prior attorney failed to inform the defendant of the consequences and sentences he faced after trial if convicted.

This Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above. Other testimony offered in support of this basis includes the testimony of Philip Russo.

Contrary to the Defendant's claim that Mr. Russo failed to provide Defendant with his exposure on the pending sex offense charges and only told Defendant that he would get the seven year maximum available sentence, Mr. Russo testified that he did advise the Defendant of his exposure:

"Q: At any point in time prior to the date of the scheduled Grand Jury, did you talk about what potential sentences the defendant faced on the sex abuse one charge?

A: Yes.

Q: What did you tell him?

A: I told him that he faced anything from probation on up to two-to-seven years upstate time."

(Minutes of 04/16/21, Pg. 84, lines 16-24) (Emphasis added).

Mr. Russo further testified that he sent Defendant correspondence dated August 3, 2018 outlining aspects of his sentence exposure, which was entered as Exhibit 2. That letter notes the following regarding Defendant's sentencing exposure:

"Dear K:

I am absolutely thrilled for you given that we were able to resolve the above matter short of today's Grand Jury presentation and short of trial. As you have been made aware, you were charged with Sexual Abuse in the First Degree, a "D" Level Violent Felony with a [*20]maximum upstate sentence of Seven Years. In three weeks, you will appear in Riverhead with me for the purpose of entering into the following plea: You will plead guilty to the Offense of Sexual Abuse in the First Degree, and you will have to admit to the act, as charged, but you will not be sentenced for 1 year. Therefore, you will NOT be a registered as a sex - offender. Instead, you will be permitted by the Court to complete 1 Year of Interim Probation with the Suffolk County Department of Probation. This Probation will operate much like the probation that you were on many years ago. You will have a Probation Officer, who will be able to designate what treatment and/or treatment evaluations you require. Additionally, based upon what the treatment evaluations state, the probation officer and the Court will have the right to impose "sex offender" conditions. Examples would include the right of probation to monitor your internet and computer use or to even prevent you from possessing pornographic material. Another possible condition would be the requirement that you remain more than 1000 feet away from any schools. Again, these conditions would be based upon what the judge and the probation officer deem appropriate given your circumstances. If you successfully complete 1 year of interim probation, the guilty plea to sexual abuse will be withdrawn and YOU WILL BE PERMITTED TO PLEAD TO ENDANGERING THE WELFARE OF A CHILD, a misdemeanor. You would then serve a final two years of probation. Do not violate your interim probation because if you do, the felony plea to Sexual Abuse would stand, you would be classified as a sex offender and the judge- would have the right to resentence you to anything from 10 years of felony probation to 7 years of upstate incarceration. If something questionable does happen while on probation, do not "lose your mind". Simply contact me and we will work through it. NONETHELESS, I EXPECT YOU TO LIVE LIKE A CHURCH MOUSE FOR ONE YEAR, in order to secure the plea to endangering the welfare!!!! You have successfully completed probation before. Consequently, I fully expect you to complete probation successfully once again and to take full advantage of this very favorable plea offer." (Emphasis added)

Additionally, Mr. Russo testified that he sent Defendant correspondence dated August 7, 2018 outlining further aspects of the agreed upon plea disposition and sentence, which was entered as Exhibit 3. That letter notes the following:

"Dear K:

Enclosed is a hard copy of the plea explanation that I texted to you on Friday, along with a copy of the current Order of Protection that was previously served upon you. We will be taking a plea on this matter August 20, 2018 at 9:00 A.M. sharp before the Honorable Barbara Kahn at 210 Center Drive, Riverhead, New York 11901. Let me take this opportunity to warn you that a probation representative could come to your home literally ANYTIME after we take the plea that is outlined in the attached correspondence. Therefore, anything that could be considered a violation of any conceivable term of probation MUST BE REMOVED FROM YOUR HOME NOW or you risk a future violation of probation that could destroy your plea bargain and subject you to incarceration and sex offender registration. Any contraband, whatsoever, must be removed from your home and/or possession: alcohol, drugs, marijuana, pornographic material, guns, etc. (it is a violation of the current order of protection, to have a gun, shot gun or otherwise, in your home or in your possession. If a probation officer finds any of [*21]the above, your interim probation will be violated, the plea bargain will be destroyed and the Judge can resentence you to jail and sex offender registration." (Emphasis added)

The minutes of the plea proceeding corroborate that Defendant was fully apprised of his exposure prior to pleading guilty, as follows:

"THE COURT: Ms. Castaldo, please place the People's understanding of the anticipated and bargained-for disposition on the record.

MS. CASTALDO: Thank you, your Honor. It's the People's understanding that the defendant will be pleading guilty as charged to both counts under the SCI, to sexual abuse in the first degree, a Class D felony, as well as endangering the welfare of a child, a Class A misdemeanor. It's People's understanding the defendant will be placed on one year of interim probation, to include alcohol conditions, narcotic condition's and sex offender conditions, and any other conditions that probation deems appropriate. If the defendant is successful on that one year of interim probation, People at that time consent to defendant withdrawing his guilty plea to sexual abuse in the first degree and move to dismiss that count, and then it is the People's understanding he'll be sentenced to an additional three years of sex offender probation, again with alcohol and narcotic conditions, under the endangering the welfare of a child charge. Should the defendant not be successful, the defendant would then be sentenced on both the sexual abuse second degree felonies, as well as the endangering. He would then be a registered sex offender and the bargained-for break out would six months of incarceration, followed by ten years of sex offender probation, and again he would be registered under the Sex Offender Registration Act at that point. Also, a permanent order of protection as well.

THE COURT: And with respect to the proposed disposition, should the defendant be successful, the one year of interim probation would be credited toward the additional time on the endangering?

MS. CASTALDO: Correct.

THE COURT: Counsel, is this your understanding?

MR. RUSSO: Judge, that's our understanding. I don't know if I heard correctly, that six months incarceration was only in the event that he did not complete his interim probation, and it would be a cap of six months and ten years probation and you would still permit me the opportunity —

THE COURT: The cap being on the incarceration, not on the ten years.

MR. RUSSO: Understood. Permit me the opportunity to argue on his behalf should that happen.

MS. CASTALDO: Just for the record, if he were to then violate again under the ten years of probation, it would be up to the Court at that point what to then re-sentence him to.

THE COURT: Yes. I'm in full agreement. There would be no caps on that.

MS. CASTALDO: Correct."

(Exhibit G, Pg. 2, line 20 — Pg. 5, line 13) (Emphasis added).

Further in the Plea colloquy, the Court verified both that Defendant was satisfied with his attorney's representation and that the above-described plea terms were the ones to which he had agreed:

THE COURT: Have you spoken with Mr. Russo about your case and are you waiving your right to be prosecuted by an indictment?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with the advice and legal services of your attorney?

THE DEFENDANT: Yes.

THE COURT: In return for your waiving prosecution by indictment and agreeing to be prosecuted by Superior Court Information you would be permitted to plead guilty to both counts of that Superior Court Information, specifically a felony sexual abuse in the first degree* as well as a misdemeanor of endangering the welfare of a child, that you would then be placed on interim probation under the terms and conditions that have been already been placed on the record by the assistant district attorney. Is this your understanding as well?

THE DEFENDANT: Yes.

(Exhibit G, Pg. 6, line 18 — Pg. 7, line 15)(Emphasis added).

Regarding collateral consequences of the plea, it is clear that Mr. Russo discussed with the Defendant that a conviction to the top count charged would impact his banking license and result in registration pursuant to the Sex Offender Registration Act, in that text messages sent by Mr. Russo reflect such a discussion, as did correspondence sent by Mr. Russo.

On 08/03/2018 at 1:09:33pm, Mr. Russo sent the Defendant the following message:

"They finally called me back. Have an offer that will preserve your license and keep you off of sex offender registry!!!!!"

(Exhibit 1, Pg 29) (Emphasis added).

Likewise, on August 3, 2018, Mr. Russo sent the Defendant a letter which outlined that he would be placed on the sex offender registry if he were found guilty of the charged D felony Sexual Abuse:

"Do not violate your interim probation because if you do, the felony plea to Sexual Abuse would stand, you would be classified as a sex offender and the judge- would have the right to resentence you to anything from 10 years of felony probation to 7 years of upstate incarceration."

(Exhibit 2, Pg. 2).

As the above evidence adduced at the hearing indicates, Defendant was fully apprised of the consequences and sentences he faced after trial if convicted regarding probation, incarceration, impact on banking license, and registration under the Sex Offender Registration Act.

While this Court does not credit Defendant's testimony, it notes that Defendant asserted purported misinformation about the impact on a Family Court or CPS investigation. Specifically, in his closing argument, Defense counsel argued:

"The quality of law with respect to CPS indications, and how a guilty plea and allocating to sexually abusing a child may impact, that is something he wanted to know, because he texted him about it. And the response with the lawyer was not, listen, if you plead guilty, this is what is going to happen. They have got nothing. It's bull shit. You're going to get this unfounded. This is just — this is what happens. Every bull shit report is indicated. That's what is in evidence. He doesn't tell him, by the way, you know, I know this is a concern of yours, when you walk into this plea, the second you factually allocate, your chances of getting this unfounded are slim to none. It was important for the client to have that. And the client testified to it on my examination. He is telling him in one breath take the civil case to trial after he is advising him to plead guilty and give the factual allocution. You're not taking any civil case to trial. There is going to be summary [*22]judgment against you on that factual allocution, in fact, you're precluded under the case law in the CPLR to introduce evidence contrary to your factual allocution. It's an erroneous statement of law, again, for the client. The client's concern is they're going to sue me. They 're going to come after me with money. I want to speak to the DA. How does that impact the plea? The client said it was a concern of mine. The client then, under the advice of counsel, thinks that he can go to trial in the civil case. He can't. Again, another misrepresentation by the attorney of law."

(Minutes of 04/28/21, Pg. 114, line 23 — Pg. 116, line 10).

This Court quotes the closing at length on this issue because the evidence in support of this basis is so deficient that this Court finds that the Defense has not met its burden on this issue. For purposes of review, this Court will analyze all evidence in support of this claim.

As noted above, this Court does not credit Defendant's testimony on this or any other issue. The only other witness who testified about a purported CPS investigation is Philip Russo. The extent of testimony he offered on this issue is as follows:

"Q: Do you recall if you ever received any information from the Family Court from K via fax?

A: I believe I received something possibly with the Family Court CPS or state registry.

Q: He had faxed you that?

A: Yes.

Q: And did you counsel him with respect to that?

A: I didn't personally counsel him at that time. I told him I would consult with my wife, who is a matrimonial and family court expert."

(Minutes of 04/16/21, Pg. 49, line 7 — 20).

"Q: You went on, and told the prosecutor on direct examination, that you spoke to your wife for a period of two months. Yes, you did say that, yes?

A: That's correct.

Q: And then you also put in a text message to your client, which you went over with the prosecutor here under oath, a text message that your wife is an expert, you told him that in writing, yes?

A: Term of art.

Q: Yes or no, did you tell him that in writing?

A: I did.

Q: In fact, that was in response to a CPS letter coming across through text message to you?

A: That's correct.

Q: In fact, that was in response to him asking specific questions, with respect to certain issues, that he was concerned about with CPS, yes?

A: Yes.

Q: In fact, you knew at that moment, when you got the text, that he was concerned about CPS, yes?

A: Yes.

Q: You actually told him that you had your own CPS case?

A: That's correct.

Q: The CPS case, did you advise the client as to what would happen with respect to a guilty plea in this case and the impact it may have on CPS; yes or no?

A: I did not make that advisement to him.

Q: And despite the fact that you have a series of text messages going on, for a period of time, discussing CPS, yes?

A: I didn't represent him in that case, Mr. Alba.

Q. As a matter of fact, you told him specifically in writing, they got nothing, those are your words, sir?

A: Meaning CPS?

Q: Yes.

A: That's correct.

Q: They got nothing, right?

A: That's what I stated.

Q: You would never lie to your client about that, would you?

A: I wouldn't lie to him about that.

Q: You would never make a misrepresentation to the client when you said that, right?

A: That's correct.

Q: You believed in it when you said it, yes?

A: I believe they had nothing in terms of sufficient evidence to create a founded result in that case."

(Minutes of 04/16/21, Pg. 219, line 20 — Pg. 222, line 13).

"Q: You specifically all the way through June 21, 2018, you indicated to Mr. M: They've got nothing. That was a text message you sent to Mr. M?

A: If the text is there, it was said.

Q: In response to CPS -doing an investigation: Every bullshit report is indicated, is what you told him?

A: In general with the CPS, that's, been my experience.

Q: And that was on June 29, 2018 that you thought the report was bullshit was your words.

A: CPS."

(Minutes of 04/21/21, Pg. 78, line 18 — Pg. 79, line 1).

No evidence was put forward about the nature of any particular CPS investigation, which specific child was the subject of such allegations (from Exhibit 9, it is clear there are multiple children in the victim's household), whether any civil or family court cases were initiated, nor were any other details provided in the testimony above. This Court notes that blurry images appear of documents embedded in the text message chain contained in Exhibits 1 and C, but despite this Court's best efforts, it cannot read with clarity the document in the images. No legible copies of any such documents were admitted into evidence. In the absence of any specifics, it would be mere speculation to make the illogical leap encouraged by Defense-counsel's closing argument that a plea allocution to the instant indictment would have an adverse effect on another matter.

Short of an acquittal, there would be no way to avoid the ancillary effects upon a CPS investigation. Any litigant understands they will be required to make difficult decisions to try to avoid certain negative consequences, but that other negative consequences may result from those decisions. In this case, Defendant identified to Mr. Russo that his primary priorities were to retain his banking license and to prevent significant jail exposure. These concerns helped Mr. Russo to guide his plea negotiations. Mr. Russo's negotiations resulted in a conditional plea [*23]which, if Defendant complied with the conditions of probation, would both protect the Defendant's banking license and prevent the Defendant from serving any jail time. Other negative consequences may obviously result, but absent acquittal, cannot be avoided.

Defendant's current attorney is asking this Court to find that a failure to adequately advise about the consequences of a CPS case should invalidate a beneficial plea, which addressed all of the priorities raised by the Defendant. Yet, no proof was presented that there ever was a pending CPS case.

Lest the reader believe that this Court has excluded important information on this issue as a result of finding the Defendant's testimony incredible, the Court hereby includes below the testimony offered by the Defendant on this issue, which this Court does not find credible:

"Q: Now, during the course of Mr. Russo's representation of you, prior to you pleading guilty, did you notify him about a CPS letter that you had received?

A: Yes.

Q: And were you concerned about, having a CPS case?

A: Yes.

Q: And particularly, prior to you pleading guilty, did Mr. Russo outline for you the impact that a guilty plea would have on a CPS case?

A: He told me that there would be a hearing and it was going to be dismissed.

Q: And did he tell you afterwards particularly with respect to how the guilty plea could impact the CPS case?

A: No.

Q: So prior to going into Judge Kahn on August 20th of 2018, in any formal communication with Mr. Russo did he indicate to you, specifically that time frame, as to how the CPS case could be affected by the guilty plea?

A: No."

(Minutes of 04/09/21, Pg. 16, line 10 — Pg. 17, line 8).

As shown above, the incredible testimony of the Defendant, even if believed, does not add clarity to the vague allegations of a CPS investigation. Defendant has failed to meet his burden of proof to establish the facts in support of this basis and it is therefore denied.

This Court will now address the sixth basis upon which the CPL §440 hearing was granted, namely:

• Defendant claims the plea was not knowingly, voluntarily, and intelligently made based on the defendant's prior counsel's representations, exerting force, coercion, terror, and direct and indirect threats to the Defendant, if he refused to plead guilty.

This Court does not credit Defendant's testimony for the reasons stated in "PART 3 — CREDIBILITY DETERMINATIONS" above. Other testimony offered in support of this basis includes the testimony of Raymond M and Philip Russo.

Defendant's words and conduct have been inconsistent with the claimed coercion, both on the date of the plea as well as post-plea.

Contrary to the claimed basis of coercion and lack of voluntariness, on the date of the plea (August 20, 2018), Defendant swore under oath repeatedly that he was satisfied his attorney's services and that the plea was not the result of coercion or pressure:

THE COURT: Are you satisfied with the advice and legal services of your attorney?

THE DEFENDANT: Yes.

(Exhibit G, Pg. 6, lines 22-25).

THE COURT: You had told me earlier that you were satisfied with the advice and legal services of your counsel; is that correct?

THE DEFENDANT: Yes.

(Exhibit G, Pg. 11, lines 8-11).

THE COURT: Are you doing so voluntarily and of your own freewill.

THE DEFENDANT: Yes.

(Exhibit G, Pg. 9, lines 4-6).

THE COURT: Do you do so voluntarily and of your own freewill?

THE DEFENDANT: Yes.

(Exhibit G, Pg. 15, lines 15-17).

THE COURT: Other than what I placed on the record concerning sentencing, has anyone, myself, your lawyer, the prosecutor, the police, anyone at all made any promises in. order to get you to plead guilty?

THE DEFENDANT: No.

THE COURT: Has anyone threatened you, coerced you, or pressured you into pleading guilty against your will?

THE DEFENDANT: No.

THE COURT: Are you doing this voluntarily and of your own free will?

THE DEFENDANT: Yes.

(Exhibit G, Pg. 19, lines 2-14).

Contrary to the claimed basis of terror and threats, in the days following the plea Defendant sent multiple text messages to Mr. Russo indicating his satisfaction with Mr. Russo.

On 09/19/2018 at 6:55:41pm (30 days after the plea) Defendant sent the following message declaring that he trusted Mr. Russo and appreciated his work.

"Thank you for standing by me Phil It means a lot to me I'm not going to use any other lawyer beside you I trust you and I believe in you and you're really there for me and I see that and it means the world to me and I know you're trying your best and I have faith in you and I just want you to know that I really do appreciate you and I promise after I close on the 27th I will be dropping off the check to your office immediately thank you again for everything."

(Exhibit 1, Pg. 65-66).

Shortly thereafter, at 6:56:32pm, Defendant sent a text message to Mr. Russo on declaring that he trusts Mr. Russo and thanking him.

"My head is this so foggy with all this stuff that's going on and I'm losing my mind and freaking out I just want you to know I know you're there for me and thank you."

(Exhibit 1, Pg. 66).

Most tellingly and contrary to Defendant's currently espoused position that he was placed in terror and threatened by Mr. Russo is the fact that Defendant chose to re-hire Mr. Russo to represent him in the subsequent violation of probation proceeding. Defendant's conduct in re-hiring Mr. Russo to provide further legal services for a separate proceeding is the most persuasive evidence that Defendant was satisfied with Mr. Russo's representation on the above-captioned indictment and did not fear him, nor feel coerced by him.

Mr. Russo testified that the Defendant had retained him to defend him on the violation of probation matter:

"Q: Did he retain you on that charge, the violation of probation incident?

A: He retained me to represent him. I don't know if I was formerly paid a retainer, but I was handling it for him.

Q: Did he ever pay you?

A: He paid me $2,000 I guess to handle both at that point. I think $2,000 was directed at the criminal possession of a weapon, but it was my understanding he was going to pay me on the violation of probation as well. I did put together a retainer and I did handle that case for him up until the time that I was terminated as his attorney."

(Minutes of 04/16/21, Pg. 180, line 23 — Pg. 181, line 12).

The retainer that Mr. Russo prepared is dated September 16, 2018 and was admitted as Exhibit 14.

Corroborating this testimony is the same text message quoted above from 09/19/2018 at 6:55:41pm (30 days after the plea), in which the Defendant stated that he was going to stay with Mr. Russo as his attorney on the violation of probation matter:

"Thank you for standing by me Phil It means a lot to me I'm not going to use any other lawyer beside you I trust you and I believe in you and you're really there for me and I see that and it means the world to me and I know you're trying your best and I have faith in you and I just want you to know that I really do appreciate you and I promise after I close on the 27th I will be dropping off the check to your office immediately thank you again for everything."

(Exhibit 1, Pg. 65-66) (Emphasis added).

Further corroboration is provided by the letter sent by Mr. Russo to the Defendant advising him of various issues on the Violation of Probation matter, offers, and collateral consequences. This letter, dated September 24, 2018 was admitted as Exhibit 15.

As shown above, Defendant's claims on this basis are refuted by his own testimony as well as other communications by him. "In any event, defendant's assertion that he felt pressured to accept the plea deal amounts to nothing more that the type of situational coercion faced by many defendants who are offered a plea deal, and it does not undermine the voluntariness of defendant's admissions to violating probation" (People v. Mastro, 2019 NY Slip Op 05814, ¶¶ 1-2, 174 AD3d 1232, 1232-33, 105 N.Y.S.3d 715, 717 (App. Div. 3rd Dept.) See also People v. Kelly, 232 AD2d 314, 314, 649 N.Y.S.2d 130 (App. Div. 1st Dept. 1996) ("Defendant's pro se motion to withdraw his guilty plea was properly denied. The minutes of the plea proceeding belie defendant's bare assertions of innocence, of being under extreme pressure when asked to make his decision about the plea, and of ineffective assistance of counsel").

Defendant failed to establish, by a preponderance of the evidence, that plea counsel "failed adequately to explain the legal effect of the recording of controlled calls between the defendant and his wife, in which the defendant denied his guilt." as alleged in Basis #6, and therefore the application to vacate the conviction on this basis is denied.

On the claims of ineffective assistance of counsel, this Court notes a claim of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution requires the defendant to establish that counsel's representation fell below an objective standard of reasonableness and that he was prejudiced by such deficient performance (see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Alexander, 159 AD3d 1019, 1020, 73 N.Y.S.3d 593; People v. Abdallah, 153 AD3d 1424, 1425, 61 N.Y.S.3d [*24]618). Prejudice is established when "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 U.S. at 694, 104 S.Ct. 2052; see People v. Butler, 157 AD3d 727, 730, 69 N.Y.S.3d 66; People v. Georgiou, 38 AD3d 155, 160, 828 N.Y.S.2d 541).

Under the New York Constitution, a defendant need not prove that the outcome of the case would have been different but for counsel's errors; rather, only that in totality he or she was deprived of a fair trial (see People v. Caban, 5 NY3d 143, 155—156, 800 N.Y.S.2d 70, 833 N.E.2d 213). Defense counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective (see People v. Benevento, 91 NY2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Satterfield, 66 NY2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Pagan, 155 AD3d 779, 781, 64 N.Y.S.3d 299; People v. Clarke, 66 AD3d 694, 697, 886 N.Y.S.2d 753). To determine if a defendant received effective assistance of counsel, the court must look to the "evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of [the] representation" to determine whether the defendant received "meaningful representation," rather than whether the defendant disagrees with the strategies and tactics employed by counsel (People v. Benevento, 91 NY2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; see People v. Benn, 68 NY2d 941, 510 N.Y.S.2d 81, 502 N.E.2d 996; People v. Baldi, 54 NY2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Wade, 164 AD3d 840, 840, 81 N.Y.S.3d 205; People v. Robinson, 163 AD3d 1002, 1002, 81 N.Y.S.3d 512; People v. Saliani, 163 AD3d 854, 80 N.Y.S.3d 471).

A recent Court of Appeals decision from May 7, 2020 expounded on the current state of the law as follows:

"Under both the New York and federal standards, defendant bears the burden of establishing that counsel's performance was constitutionally deficient. The constitutional guarantee of effective assistance of counsel is met where a defendant was afforded "meaningful representation" based on "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation." To prevail on an ineffective assistance claim, a defendant must "demonstrate the absence of strategic or other legitimate explanations" — i.e., those that would be consistent with the decisions of a "reasonably competent attorney" — for the alleged deficiencies of counsel. A single error can constitute ineffective assistance, "but only when [it] is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v. Maffei, 35 NY3d 264, 269 [2020]) (Internal citations omitted).

Likewise, a recent Appellate Division, Fourth Department decision on April 30, 2020 addressed the effective assistance of counsel standard with respect to plea cases:

"A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty. In Padilla, the United States Supreme Court held that constitutionally effective assistance of counsel requires defense counsel to advise a defendant whether a plea carries the risk of deportation. Whether a defendant is entitled to relief on his claim will depend upon whether he can satisfy the prejudice prong of the Strickland v Washington test. In the context of a guilty plea, a defendant must show that there was a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." (People v. Lantigua, 184 AD3d 80, 85 [App. Div. 1st Dept]) (Internal citations omitted).

In due consideration of the bases alleged in the motion and litigated at the hearing, and for the reasons more fully stated above, this Court concludes that Defendant failed to satisfy his burden of proof under CPL §440. The remaining arguments presented by the Defense on April 28, 2021 have been considered by this Court, and rejected as unpersuasive. In this Court's view of the evidence, the presumptions of effective assistance of counsel and regularity have not been rebutted, the August 20, 2018 plea was knowing, intelligent and voluntary, and the representation by Mr. Russo was effective. The application to vacate the plea is denied.

This constitutes the decision and order of the Court.