PEOPLE v. THOMSON (2007)

Appeal, by permission, from an order of the Supreme Court (Teresi, J.), entered December 8, 2006 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of attempted murder in the first degree, attempted assault in the first degree (four counts) and reckless endangerment in the first degree, without a hearing.

Defendant was charged in a 13-count indictment stemming from an incident where he stole a delivery truck, led the police on a chase and drove the truck into a line of police cars.   He originally pleaded guilty to attempted murder in the second degree and was sentenced to 12 1/212 to 25 years in prison.   On appeal, this Court vacated his plea (279 A.D.2d 644, 719 N.Y.S.2d 171 [2001] ).   Following his rejection of a new offer to plead guilty to four counts of attempted assault in the first degree with an aggregate sentence of 8 to 16 years, defendant was convicted at a nonjury trial of the crimes of attempted murder in the first degree, attempted assault in the first degree (four counts) and reckless endangerment in the first degree.   Defendant was sentenced to concurrent prison terms of 16 years to life for the conviction of attempted murder in the first degree, 5 to 10 years for each conviction of attempted assault in the first degree and 2 to 6 years for the conviction of reckless endangerment in the first degree.   This Court affirmed those convictions (13 A.D.3d 805, 786 N.Y.S.2d 262 [2004], lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 [2005] ).   Supreme Court denied defendant's subsequent CPL 440.10 motion to vacate the judgment, without a hearing.   Defendant now appeals, claiming that he was denied the effective assistance of counsel.

 We affirm.   To establish an ineffective assistance claim under the U.S. Constitution, a defendant is required to show a “ ‘reasonable probability’ that ‘but for counsel's unprofessional errors, the result of the proceeding would have been different’ ” (Mask v. McGinnis, 233 F.3d 132, 140 [2000], cert. denied 534 U.S. 943, 122 S.Ct. 322, 151 L.Ed.2d 240 [2001], quoting Boria v. Keane, 99 F.3d 492, 496 [1996];  see Pham v. United States, 317 F.3d 178, 182 [2003] ).   Under New York law, courts must view a case in its entirety to determine whether the defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), and the defendant must show that he or she was prejudiced by counsel's errors (see People v. Williams, 299 A.D.2d 580, 580, 748 N.Y.S.2d 879 [2002], lvs. denied 99 N.Y.2d 616, 621, 757 N.Y.S.2d 827, 832, 787 N.E.2d 1173, 1178 [2003];  People v. Frascatore, 200 A.D.2d 860, 861, 607 N.Y.S.2d 144 [1994] ).

 Here, defendant contends that he was prejudiced by counsel's failure to ascertain that a prior New Jersey conviction did not constitute a predicate felony, because both the People and defense counsel considered him a second felony offender during plea negotiations.   By affidavit, counsel admitted that defendant asserted that he was not a predicate felon, counsel made only a cursory check to confirm this prior to plea negotiations and he only confirmed defendant's assertion after trial.   Counsel's failure to verify defendant's criminal history prior to plea negotiations constituted inadequate legal assistance (see People v. Garcia, 19 A.D.3d 17, 18, 795 N.Y.S.2d 216 [2005] ).

 Acknowledging counsel's error, we must also determine whether there is a reasonable probability that, but for this error, the result would have been different (see Mask v. McGinnis, 233 F.3d at 140;  People v. Williams, 299 A.D.2d at 580, 748 N.Y.S.2d 879).   To establish such prejudice, defendant must show that the People would have offered a plea deal more favorable than their offer of an aggregate prison term of 8 to 16 years if they had been aware of his actual status and, if such a deal were offered, defendant would have pleaded guilty (see People v. Garcia, 19 A.D.3d at 20-21, 795 N.Y.S.2d 216).   Defendant does not present any evidence that the People would have offered a more favorable plea had his true status been known, instead merely relying on the assumption that first-time violent offenders will always receive more favorable plea offers than predicate offenders.   As there is no evidence that the People based their plea offer on the belief that defendant was a predicate offender (compare id. at 21, 795 N.Y.S.2d 216;  Mask v. McGinnis, 233 F.3d at 141), we are unpersuaded that a change in his status would have led to a more favorable plea offer, especially considering the serious nature of the charges here. Significantly, in Garcia and Mask, the People were offering the lowest sentences available based upon the defendants' incorrect prior criminal records, and indicated a willingness to negotiate lower sentences if possible.   Here, the People were offering mid-range sentences on two counts of the indictment, with no record indication of a willingness to negotiate further within the permissible sentencing range.

Defendant also failed to present objective evidence that, if given the opportunity, he would have accepted a more favorable plea offer (see United States v. Gordon, 156 F.3d 376, 381 [1998] ).   Defendant relies solely upon his own self-serving affidavit in which he states that had a more favorable offer been extended, he “would have considered [it].”   While there is no record evidence as to what sentence defendant would have been willing to accept, based on the charges he faced it is unlikely that there would have been a significant disparity between an offer made with knowledge that defendant was a first-time felon and the 8 to 16-year term that he was offered (cf. Mask v. McGinnis, 233 F.3d at 142).   As defendant rejected an offer of 8 to 16 years in prison and was willing to go to trial facing a term with a maximum of life imprisonment, and he failed to provide a definitive statement as to what sentence he would have accepted, we are not convinced that defendant would have accepted a more favorable offer had it been made.   Thus, we cannot find that counsel's misconception during plea negotiations caused defendant any prejudice.

ORDERED that the order is affirmed.

KANE, J.

CREW III, J.P., PETERS, MUGGLIN and ROSE, JJ., concur.