People v Verdejo

Supreme Court, New York County

Decided on April 24, 2026

Indictment No. 4878-07

Valentina M. Morales, J.

Cristobal Verdejo, hereinafter "defendant," moves this court for CPL 440 relief on the grounds that ineffective assistance of trial counsel tainted both his conviction and his sentence by causing him to reject a plea offer that was more favorable than his ultimate post-trial [*2]sentence.^FN1 This court held a hearing concerning this specific claim, which is governed by Lafler v Cooper, 566 US 156 (2012). After a complete review of the record, this court finds that the defendant has established all necessary elements of a Lafler challenge by the required standard of proof. As such, the relief he requests must be GRANTED.

Procedural History and Relevant Facts

For conduct committed on September 10, 2007, defendant was convicted by a jury on June 12, 2008, of Attempted Murder in the Second Degree (Penal Law §§ 110.00/125.25 [1]), Assault in the First Degree (Penal Law § 120.10 [1]), and two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03 [l] [b], [3]). He was sentenced on July 2, 2008, to four concurrent carceral sentences, each of which included an additional five years' post-release supervision: two 25-year sentences for the attempted murder and assault charges, and two 15-year sentences for the weapon possession charges. He appealed on the sole basis that justification was not disproven beyond a reasonable doubt, and his conviction was affirmed (People v Verdejo, 83 AD3d 455 [1st Dept 2011], lv denied 17 NY3d 802 [2011]). Citing ineffective assistance of appellate counsel, he unsuccessfully moved pro se for a writ of error coram nobis for counsel's failure to challenge excessive sentencing (People v Verdejo, 2018 NY Slip Op 85268[U] [1st Dept 2018], lv denied 34 NY3d 939 [2019]). His later pro se CPL 440.10 motion, based on various claims of ineffective assistance of trial counsel, was denied on the merits on July 30, 2014. A subsequent pro se CPL 440.20 (1) motion was likewise denied on May 11, 2016, on the grounds that the court had no authority to set aside a sentence that was within the legally permissible range, and because excessive sentence claims must be raised on direct appeal.

The instant motion was brought under CPL 440.10, 440.20, and initial submissions of both parties were complete on September 8, 2025. Finding that the defendant had established a prima facie claim and over the objection of the People, this court ordered a limited hearing on the Lafler issue which took place on January 21, 2026. The sole witness was the defendant.^FN2 Direct testimony was elicited, and the defendant was vigorously cross-examined by the assigned prosecutor. The court found the defendant to be a credible witness and makes the following findings of fact crucial to this court's reasoning and determination: during extensive plea negotiations, the defendant was never advised by his attorney that the maximum sentencing exposure he faced after trial was 40 years. Instead, he was instructed that he faced a maximum penalty of 25 years. Believing this to be true, he refused an offer which carried a promised carceral sentence of 20 years. Upon conviction, the People recommended a sentence of 40 years. Defendant was sentenced to 25 years.

Determinative Rulings by this Court

CPL 440.10 Is the Proper Vehicle

Defendant's motions in the alternative notwithstanding, appellate jurisprudence (People v Lewis, 232 AD3d 1316 [4th Dept 2024]; People v Mangiarella, 128 AD3d 1418 [4th Dept 2015]; People v Manning, 151 AD3d 1936 [4th Dept 2017]) holds that Lafler claims are properly heard under CPL 440.10, which permits vacatur where "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States" (CPL 440.10 [1] [h]) — here, the right to effective assistance of counsel.

No Mandatory Procedural Bars Apply

Most of the mandatory and permissive procedural bars urged by the People are wholly inapplicable to this claim (CPL 440.10 [2] [c, d]; CPL 440.10 [3] [a, b]). Further, this court declines the People's request to apply CPL 440.10 (3) (c), which permits but does not require summary denial when, "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." This court draws a distinction where, as here, defendant's prior collateral challenges were made without the benefit of legal counsel.

Summary Denial Was Overcome

The instant motion raised assertions requiring this court to "conduct a hearing and make findings of fact essential to the determination thereof." (CPL 440.30 [5].) Specifically, defendant's assertions — that he was advised by his lawyer that his maximum sentence was 25 years; if he had known it was in fact 40 years, he would have taken the People's offer of 20 — constitute material, nonrecord facts that are independently supported by the corroborating trial transcript.^FN3 As such, they served to overcome the presumption of trial counsel's effectiveness, and entitle defendant to relief if proven true — conditions which prevent summary denial and necessitate a hearing. (People v Linksman, 183 AD2d 510 [1st Dept 1992] [summary denial of CPL 440.10 unanimously reversed and remanded for evidentiary hearing; allegations in defendant's motion overcame the strong presumption that counsel rendered effective assistance]; People v Ferreras, 70 NY2d 630, 631 [1987] [motion court erred in denying the CPL 440.10 motion without a hearing where defendant's affidavit set forth material, nonrecord facts which "if established could entitle defendant to the relief sought"]; People v Lantigua, 184 AD3d 80, 81-82 [1st Dept 2020] [where "there is independent support for defendant's assertion that his plea was induced by erroneous advice given by his trial counsel," defendant has "raised a reasonable possibility that he was prejudiced by the misadvice" and summary denial is improper]; cf. People v Ross, 123 AD3d 454 [1st Dept 2014] [Lafler claim properly denied where "submissions on the motion failed to demonstrate that, but for counsel's allegedly incorrect advice regarding the possibility of consecutive sentencing, there was a reasonable probability that defendant would have accepted the People's plea offer"], lv denied 26 NY3d 934 [2015].)

Ineffective Assistance of Counsel Under Lafler v Cooper

Effective assistance of counsel is guaranteed under both the United States and New York [*3]constitutions (US Const, 6th Amend; NY Const, art I, § 6), and defendants bear the burden of showing any deprivation thereof (United States v Cronic, 466 US 648, 658 [1984]). The federal standard analyzes counsel's performance under "an objective standard of reasonableness" and requires a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland v Washington, 466 US 668, 688, 694 [1984], reh denied, 467 US 1267 [1984]). New York's standard is "more protective than the Federal standard" (People v Debellis, 40 NY3d 431, 436 [2023]) and requires "meaningful representation," as determined by "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]). New York jurisprudence is clear that even under this holistic examination, "a single, sufficiently egregious and prejudicial error will constitute ineffective assistance of counsel, despite an otherwise competent performance." (People v Hayward, 42 NY3d 753, 757 [2024] [citations omitted].)

The specific kind of ineffectiveness alleged here — "inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome" — is governed by Lafler v Cooper, 566 US 156, 160 (2012). New York appellate law articulates the Lafler requirements as: "(1) the existence of a prior, more favorable plea offer, (2) a reasonable probability that, but for defense counsel's conduct, he or she would have accepted the prior plea offer, (3) a reasonable probability that the agreement would have been presented to and accepted by the court and (4) that the conviction and/or sentence under the terms of the plea offer would have been less severe than the conviction and sentence ultimately imposed" (People v McGee, 166 AD3d 1390, 1392 [3d Dept 2018] [citations omitted]). The defendant has succeeded in establishing each of these by a preponderance (CPL 440.30 [6]).

The Existence of a Prior, More Favorable Plea Offer

The first prong, the existence of a prior, more favorable plea offer, is not contested and is clearly borne out by the trial transcript, which on multiple occasions reflects the People's offer of 20 years. (Tr March 4, 2008, April 15, 2008 and April 22, 2008 calendar appearances; tr June 2, 2008 just prior to jury selection; and tr June 10, 2008 at the close of the People's case in chief; cf. People v Bank, 28 NY3d 131, 137-138 [2016] [trial record shows there was "no possibility that a reduced plea would have been offered" or "extended by the court"].) This remained the offer throughout the pendency of pretrial proceedings through the conclusion of the People's case in chief.

But For Defense Counsel's Conduct, Defendant Would Have Accepted the Plea

The second prong is the crux of the instant matter; the People strongly contest that defendant has demonstrated "a reasonable probability that, but for defense counsel's conduct, he or she would have accepted the prior plea offer" (McGee, 166 AD3d at 1392). This court now finds that defendant was indeed misadvised concerning his maximum sentencing exposure. It was amply established through hearing testimony, and supported by the trial record, that trial counsel was not merely silent as to his client's maximum, but in fact represented an erroneous maximum. Trial counsel stated twice in open court that his client faced up to 25 years and was not corrected by the court or by the prosecution — an oversight that could only serve to lend credence to trial counsel's misstatement. Indeed, no Lafler claim lies where defendant received "timely and accurate advice" from the trial court regarding his maximum exposure (People v [*4]Quinones, 139 AD3d 408, 409 [1st Dept 2016]).

The People sought to establish that defendant invented the alleged misadvice many years after the trial, arguing that his current statements to this effect are self-serving and wholly incredible. Yet in the hearing before this court, defendant testified credibly on direct and again on cross examination that he had not been told by his lawyer, by the judge, or by the prosecution, that he faced any sentence greater than 25 years. He further testified that no one mentioned "consecutive sentences" or any figure above 25 years until after the trial; according to his testimony, he first heard that he could be sentenced to 40 years when he appeared at sentencing. He described his confusion upon hearing the People ask for 40 years, and shortly thereafter hearing the sentences pronounced in numbers potentially totaling 100 years. This court found his candor, consistency and general demeanor to be credible. The People hinted that if defendant had truly been misadvised in this fashion, he would have raised this claim in his earlier postjudgment filings. Yet his direct appeal preceded Lafler, and his other motions were pro se, with no indication that he could have known the governing law.

The People point to the sentencing transcript to suggest that defendant was fully aware, prior to rejecting the plea, that he faced 40 years. That transcript reads in part:

THE COURT: Am I correct that there was an offer of 20 years before trial, or a recommendation of 20 years before trial and that, I think it was Judge Solomon and another Judge, Judge Carruthers or McLaughlin --

MR. SINGER: First with Judge Solomon, it was 20, that was his offer, and then with Judge McLaughlin the offer was 20. Then a hearing was in front of Judge Carruthers, and it was 20. The People were recommending 20 and made it clear that the maximum exposure that the defendant, potentially, would face after trial, if convicted, would be 40 years.

THE COURT: Mr. Singer, I'll hear you.

MR. SINGER: Thank you your Honor. I am not going to retry the case, like the Prosecution right now, since I think your Honor has heard it. Your Honor, I would ask for the minimum in this case.

(Tr July 2, 2008, at 13, line 14, through 14, line 8 [emphasis added].) The defendant argues that the italicized statement was misattributed to defense counsel, and was in fact made by the prosecution; the People argue that the certified, previously unchallenged, transcript must control.^FN4 In the opinion of this court, it is immaterial that the only sensible reading, given the full context, would assign that statement to the People; rather, this court is instead persuaded by the fact that at no point in over 2,000 pages of minutes reviewed by this court, was 40 years ever mentioned on the record before this July 2, 2008 sentencing. By contrast, a purported 25 year [*5]maximum was articulated multiple times on the record, at appearances before different judges, at crucial junctures in the legal proceedings. Therefore, it matters not whether the transcript attributes this statement to defense counsel, however nonsensical that would be; the notion that "the People ... made it clear that the maximum exposure that the defendant, potentially would face after trial, if convicted, would be 40 years" is completely unsupported by the rest of the trial record. The speaker suggests the People "made it clear" before Judge Carruthers; but no such statement is to be found in the minutes of the proceedings over which Judge Carruthers presided — or anywhere else. Therefore, this court affords this statement negligible weight regardless of who was speaking; it was uttered at argument, in summary — with no supporting evidence that the People stated the maximum exposure at any point before sentencing, let alone that they stated it in the presence of the defendant.

This court also finds that defendant would have accepted the plea if he had been correctly advised. The People sought to establish that he had other reasons besides misadvice for rejecting the offer. Defendant repeatedly denied on cross that his trial counsel advised him to take the offer. He reiterated that he always wanted to avoid trial, but sought a better offer, preferably 10 years, given that he had never previously been convicted of a crime and felt that he had acted in self-defense. He frankly admitted that he wanted to plead guilty because he had committed the crimes alleged. The People suggested that defendant would never have taken any plea, even one under 20; yet he consistently restated that 20 seemed too high to him because he believed the advice of his attorney that the maximum was 25. Certainly, the defendant was ill positioned to research or even doubt the veracity of his lawyer's statement regarding his sentence exposure. The defendant could not possibly make an informed decision whether to accept or reject the offered plea without knowing the range of possible sentencing — a range which must, perforce, include the top end. Where, as here, the difference between the true maximum exposure and that advised by counsel is sizeable, the odds that the error would adversely affect his decision to accept an offered plea is much more likely, and weighs in favor of the "reasonable probability" of his claim.

This court finds the misadvice established here, in conjunction with its effect, falls beneath the "objective standard of reasonableness" required by federal law (Strickland v Washington, 466 US at 688), and does not amount to the "meaningful representation" guaranteed by New York law (Baldi, 54 NY2d at 147). There is no doubt on this record that defendant was erroneously advised; further, he has satisfied this court that he relied upon that advice in declining the offered plea. On balance, despite the People's best efforts to show otherwise, defendant testified credibly that he rejected the offered plea because he was misadvised about his sentence exposure, thereby fulfilling the second prong by a preponderance. (People v Brett W., 144 AD3d 1314, 1316 [3d Dept 2016] ["defendant's uncontroverted testimony at the evidentiary hearing reflects that she would have accepted the People's initial offer"]; cf. People v Flores, 176 AD3d 859, 861 [2d Dept 2019] [defendant failed to testify credibly that his counsel misadvised him of the possibility of consecutive sentences, and also that he would have taken the offered plea; among other factors, "the record of pretrial proceedings demonstrates that the defendant maintained his innocence prior to trial"].)

The Agreement Would Have Been Presented to and Accepted by the Court

The third prong, "a reasonable probability that the agreement would have been presented to and accepted by the court" (McGee, 166 AD3d at 1392), is not contested, and again is [*6]supported by the trial transcript, which indicates that multiple judges were aware of the offer prior to trial and were willing to accept it. (Tr March 4, 2008 calendar appearance at 2, line 24, through 3, line 1 ["If he wants to go to trial, he can. If he wants to take a plea with an agreement. But I won't promise him the minimum sentence here."]; tr April 15, 2008 calendar appearance at 3, lines 18-24 ["[The Court] wrote down that there was no way in — that's not what he wrote. He said he would never give anything less than twenty, so I guess that's the offer and you were about to say that. Mr. Verdejo thanks us all very much. One last chance if he wanted to thank us or thank us profusely."]; tr April 22, 2008 calendar appearance at 5, lines 14-16 ["So 20 years, is, in some people's view, a gift. If you don't want the gift and if you don't view it as that, then let's have a trial."]; tr June 2, 2008 voir dire at 8, lines 19-21 ["Thank you very much, but the offer is 20 years. Is there a disposition on that basis?"]; tr June 10, 2008 at 685, line 15, through 687, line 20 [at the close of the People's case in chief, defense counsel renewed his request for a judicial offer below 20 years; the People and the Court reiterated their assessments that 20 years was "appropriate"].) (Cf. Bank, 28 NY3d at 138 [prong not met where "the sentencing court remarked that it did not think the maximum sentence was enough punishment for defendant"]; People v Rodriguez, 167 AD3d 446 [1st Dept 2018] [no prejudice shown from allegedly deficient advice; court's acceptance not established].)

Conviction and/or Sentence Under Plea Offer Would Have Been Less Severe

The fourth Lafler prong requires a showing "that the conviction and/or sentence under the terms of the plea offer would have been less severe than the conviction and sentence ultimately imposed." (McGee, 166 AD3d at 1392.) This is self-evident insofar as the offer was 20 years and the sentence was 25.

Defendant having proven his claim by the required preponderance, the court must grant his motion and "vacate the judgment, and must dismiss the accusatory instrument, or order a new trial, or take such other action as is appropriate in the circumstances." (CPL 440.10 [4].) Controlling jurisprudence, consistent with the relief articulated in Lafler (566 US at 174), dictates that here the remedy is for the court to "direct the People to reoffer the earlier, more favorable plea." (McGee, 166 AD3d at 1392; Brett W., 144 AD3d at 1316-1317; People v Maldonado, 116 AD3d 980, 981 [2d Dept 2014].)

For the foregoing reasons, defendant's motion is GRANTED. The prior judgment is hereby vacated and the People are ordered to reoffer the original plea.

Dated: April 24, 2026

New York, New York

Valentina M. Morales

Acting Justice of the Supreme Court