In this legal malpractice action, defendants John Wheldon, Esq., individually and as Assistant Public Defender for the County of Albany, and the County of Albany (defendants),^[FN1] move pre-answer to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) and (a) (7). Plaintiff opposes. For the reasons that follow, defendants' motion is granted, and the action is dismissed with prejudice.

In May 2000, plaintiff was charged by an 11-count indictment with, among other charges, rape in the first degree, sodomy in the first degree (now, "criminal sexual act"), [*2]burglary in the first degree, assault in the second degree, and unlawful imprisonment in the first and second degree. Plaintiff was assigned defendant John Wheldon, Esq. as his counsel through the Albany County Office of the Public Defender based on his indigency. Following a jury trial in November 2000, plaintiff was convicted of one count of rape in the first degree, one count of sodomy in the first degree, and two counts of assault in the first degree and sentenced to an aggregate term of 32 years' incarceration. His conviction was affirmed on appeal (see People v Poquee, 9 AD3d 781 [3d Dept 2004], lv denied 3 NY3d 741 [2004]).

In 2018, plaintiff, proceeding pro se, filed a motion pursuant to CPL 440.10 (1) (h) to vacate his judgment of conviction on the ground that his trial counsel, Attorney Wheldon, failed to convey a plea bargain offer. The Court (Lynch, J.) denied that motion.

In March 2023, plaintiff, represented by different assigned counsel, filed a second motion pursuant to CPL 440.10 (1) (h) to, as relevant, vacate his judgment of conviction. On April 11, 2023, the Albany County Court (Young, J.) granted the unopposed motion on the ground that plaintiff was deprived of effective assistance of counsel based on Wheldon's failure to convey a plea offer to attempted rape in the first degree, the proposed sentence for which was 10 years of incarceration; and vacated his conviction upon the condition that plaintiff plead guilty to attempted rape in the first degree. Immediately thereafter, plaintiff pleaded guilty to one count of attempted rape in the first degree and was sentenced nunc pro tunc to a 10-year term of incarceration. Having already served more than 10 years, plaintiff was released from custody upon entry of his guilty plea on April 11, 2023.

Plaintiff commenced the present action on February 29, 2024. Plaintiff alleges that Wheldon committed legal malpractice by failing to convey the 10-year plea offer prior to going to trial, which caused him to go to trial where he was convicted and, as a result, served 13 years more than he would have under that plea offer.

Defendants move pre-answer to dismiss the amended complaint. Defendants argue that plaintiff cannot establish a claim for legal malpractice based on Wheldon's representation in the underlying criminal proceeding because he cannot, as he must, allege actual innocence or a colorable claim of innocence as to the underlying offense based on the guilty plea he entered contemporaneously with the vacatur of his initial conviction. Alternatively, defendants argue that plaintiff's action was not timely commenced.

In opposition, plaintiff concedes that under New York Law, he must allege actual innocence or a colorable claim of innocence in order to adequately plead a cause of action for legal malpractice with respect to his criminal proceeding. But plaintiff argues that his case is exceptional, and that settled legal principals pertaining to legal malpractice pleadings relative to criminal proceedings should be set aside so as to permit him to pursue his claim. He also contends that he timely commenced the present action.

"When assessing a motion to dismiss for failure to state a cause of action, this Court affords the complaint a liberal construction, accepts the facts alleged as true, accords the plaintiff the benefit of every favorable inference and determines only whether the alleged facts fit within any cognizable legal theory" (Cincinnati Ins. Co. v Emerson Climate Tech., Inc., 215 AD3d 1098, 1100 [3d Dept 2023] [internal quotation marks, brackets and citations omitted]; see CPLR 3211 [a] [7]; Gagnon v Village of Cooperstown, NY, 189 AD3d 1724, 1725 [3d Dept 2020]). "Even under this liberal standard, dismissal is warranted if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (id. [internal quotation makrs and citation omitted]). And "the favorable treatment accorded to a plaintiff's complaint is [*3]not limitless and, as such, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss" (F.F. v State of New York, 194 AD3d 80, 83-84 [3d Dept 2021] [internal quotation marks and citations omitted], appeal dismissed & lv denied 37 NY3d 1040 [2021], cert denied — US —, 142 S Ct 2738, 212 L Ed 2d 797 [2022]; see Godfrey v. Spano, 13 NY3d 358, 373 [2009]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Sim v. Farley Equip. Co. LLC, 138 AD3d 1228, 1229 [3d Dept 2016]).

It is well established that "[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [a] plaintiff must allege [the additional element of] his innocence or a colorable claim of innocence of the underlying offense" (Carmel v Lunney, 70 NY2d 169, 171 [1987]; see Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445 [2000]; Shields v Carbone, 78 AD3d 1440, 1443 [3d Dept 2010]). But "so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie" (Carmel, 70 NY2d at 171). Said another way, "[i]t is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof" (Britt, 95 NY2d at 448 [2000]).

Plaintiff's amended complaint makes no allegation of innocence. And it is undisputed that plaintiff entered a guilty plea, which remains undisturbed, in satisfaction of the underlying charges once his initial conviction after trial was vacated on the ground of ineffective assistance of counsel. Under these circumstances, plaintiff's undisturbed "plea of guilty in the criminal proceeding bars recovery for legal malpractice allegedly committed by the defendant[s] in that proceeding" (Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], appeal dismissed & lv denied 88 NY2d 952 [1996]; see Britt, 95 NY2d at 448; Carmel, 70 NY2d at 171; Shields, 78 AD3d at 1443; cf. Arnold v Devane, 123 AD3d 1202, 1203 [3d Dept 2014]). Moreover, plaintiff fails to advance any compelling reason to depart from the long-standing "policy considerations [that] require different pleading and substantive rules" in legal malpractice actions arising from representation in criminal proceedings (Carmel, 70 NY2d at 173 [citation omitted]).

And "the fact that the alleged malpractice neither induced nor otherwise had any causal effect on the plaintiff's ultimate conviction, and instead allegedly caused plaintiff to remain in prison longer than necessary, has no bearing on the elements of a cause of action, as public policy prevents the maintenance of a malpractice action where the plaintiff cannot assert his innocence" (Rosado v Legal Aid Socy., 12 AD3d 356, 357 [2d Dept 2004]; see Boomer v Gross, 34 AD3d 1096, 1096-1097 [3d Dept 2006]; Biegan v Paul K. Rooney, P.C., 269 AD2d 264, 265 [1st Dept 2000]; Malpeso v Burstein & Fass, 275 AD2d 476, 477 [1st Dept 1999]). Plaintiff's argument that this is a unique case warranting an exception to the rule of Carmel v Lunney is unavailing.

Accordingly, defendants have established entitlement to dismissal of plaintiff's amended complaint pursuant to CPLR 3211 (a) (7) on the ground that he has not alleged, nor can he allege his innocence or a colorable claim of innocence of the underlying offense.^[FN2]

The parties' remaining points, to the extent not specifically addressed above, have been considered and found to be unpersuasive, without merit, or academic in light of the foregoing.

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss the amended complaint is granted and the action is dismissed with prejudice.

This constitutes the Decision and Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for defendants shall promptly serve notice of entry on all other parties entitled to such notice.

NYSCEF Doc Nos. 1-37