In a predicate felony statement, the People alleged that the defendant was a mandatory persistent violent felony offender (Penal Law §70.08), in light of a December 2004 conviction for attempted burglary in the second degree (Penal Law §110/140.25(2)), a Class D Violent Felony, and an October 2013, conviction of the same offense (the “2013 Plea”). On July 13, 2019, defendant moved, pursuant to Crim. Proc. Law. §400.20(6), for an order determining that the 2013 Plea was “obtained in violation of the rights of the defendant under the applicable provisions of the Constitution of the United States,” and thus that it could “not be counted in determining whether” defendant was a persistent violent felon. On October 2, 2019, the Court orally DENIED defendant’s motion.1 This written decision explains the Court’s reasoning. I. FACTUAL BACKGROUND A. The Current Indictment By New York County Indictment Number 3464 of 2017, defendant was charged with three counts of burglary in the second degree, Penal Law §140.25(2), and three counts of burglary in the third degree, Penal L aw §140.20. Defendant was alleged to have unlawfully entered a dwelling, with the intent to commit a crime therein, on three different occasions in August and September of 2017. B. The 2013 Plea The 2013 Plea took place on October 9, 2013, 2013. Plea Transcript, at 1. When the case was called, the court observed that because defendant was charged with burglary in the second degree, a Class C violent felony, and had a prior violent felony conviction, he faced a minimum of seven years’ imprisonment, and a maximum of fifteen. Id. at 2. Defense counsel replied that the People were offering a plea to attempted second-degree burglary, with a promised sentence of five years’ imprisonment, an offer that the People confirmed. Id. at 2-3. Defense counsel indicated that the defendant was “willing to take” that offer. Id. at 3. Defense counsel then entered the plea, and the defendant was placed under oath. Id. During the plea colloquy, defendant confirmed that he had spoken with his attorney about “this decision to plead guilty,” and was “satisf[ied] that [counsel had] explained the different possibilities.” Id. at 4-5. Defendant confirmed that no one had “forced” or “pressured” him into pleading guilty, and that he understood that because he was pleading guilty to a violent felony he faced a potential life sentence in the future if convicted of another violent felony Id. at 5, 6. Defendant waived his Boykin rights,2 and confirmed that he understood that, had he gone to trial, he might have been acquitted, but that if convicted he faced a minimum prison sentence of seven years after trial, instead of the five year-sentence that he had been offered on the reduced charge. Id. at 5-6. The court then read the indictment to the defendant, explaining that the second-degree burglary count alleged that “in New York County on February 16th of this year you knowingly entered and remained unlawfully in a dwelling; that is, a place where people live, with the intention of stealing something once you were inside.” Id. at 6-7. Defendant indicated that he “underst[oo]d” what he was “accused of.” Id. at 7. Defendant acknowledged that he had entered “somebody’s apartment” and that he “did not have any right to be in there.” Id. When the court asked “what did you go in there for?” defendant replied “To tell the dude to close his door, see if somebody wanted to close it.” Id. The court then explained, “No, no, no. That’s not a plea. You’re here accused of going into somebody’s apartment to steal something,” to which defendant replied: “Yeah, I took some items out of there” that he knew he had “no right to take.” Id. at 8. The court found that the defendant understood his rights, the “consequences” of pleading guilty and “the charge,” and accepted the plea. Id. at 8-9. C. Defendant’s Constitutional Challenges By a motion filed on July 13, 2019, in connection with the instant indictment, defendant asserted that the 2013 Plea was “obtained unconstitutionally” because defendant’s factual allocution “cast significant doubt upon his guilt.” Messina Aff. at
4, 16. His specific argument was that the plea colloquy did not sufficiently establish that the defendant had the intent to commit a crime “prior to” entering the dwelling. Id. at 4, emphasis in original. Alternatively, defendant argued that defense counsel was ineffective in connection with the 2013 Plea because, although he was “aware that the intent to steal had to pre-exist the unlawful entry” he “did not discuss this with” the defendant as a potential trial defense. Id. at 31. In connection with the ineffectiveness claim, defendant submitted an affirmation from the attorney who represented him during the 2013 Plea. In that affidavit, dated July 8, 2019, former counsel indicated that: he “had no specific recollection of providing [the defendant] with advice as to the required elements of burglary, or that the intent to steal had to exist at the time of the unlawful entry”; his “file does not contain any notes indicating that I advised [the defendant] that this was a potential defense; he “did not discuss” with the defendant the question of the timing of the intent “because I did not think it would succeed at trial,” and; defendant was “very focused on getting a deal and angry at his prior lawyer for not arriving at that point.” Greene Aff., at
