DECISION AND ORDER OF THE COURT On October 7, 2022, the defendant pleaded guilty to Count no. 3, Grand Larceny in the Third Degree (PL §155.35), as a class D non-violent felony and Count no. 48, Scheme to Defraud in the First Degree (PL §190.65-1[a] a class E non-violent felony under Indictment No. 2784/2018. The defendant also pleaded guilty to Count no. 1, Attempted Grand Larceny in the Second Degree (PL §110/155.40[1] a class D non-violent felony under Indictment No. 870/2019. In accordance with a negotiated plea agreement between the defendant and the People, the promised sentence under Count no. 3, Grand Larceny in the Third Degree was two and one-half years to five years and under Count. no. 48, Scheme to Defraud in the First Degree under Indictment No. 2784/2018 was one and one-half years to three years to run concurrent. In addition, under Count no. 1, Attempted Grand Larceny in the Second Degree, the promised sentence was one and one-half years to three years of incarceration under Indictment No. 870/2019. These sentences were to run concurrent with each other with certain conditions. The first condition was that the defendant was required to pay restitution in the amount of $40,175.00 in full on or before January 4, 2023. The second were three conditions that the defendant was to abide by in order to receive the promised sentence. The first was to cooperate with the Department of Probation in preparing his pre-sentence report, the second was he was to return to court on all dates the court required him to appear and the third was he could not be re-arrested for any reason between the date he plead guilty and his next court date. In addition, if the defendant failed to pay the restitution in full by January 4, 2023 or violated any of the three conditions set by the court, the sentence under the count of Grand Larceny in the Third Degree would be a period of incarceration of three and one half to seven years and under the count of Scheme to Defraud in the First Degree, the sentence would be two to four years to run consecutive, with a total sentence under Indictment No. 2784/2018 of five and one-half years to eleven years. If the defendant was not to abide by the restitution agreement under Indictment No. 2784/2018 or with the three conditions set forth by the Court, the sentence under Indictment No. 870/2019 would be two to four years incarceration to run consecutive with the sentence of five and one-half years to eleven years under Indictment No. 2784/2018 resulting in a total sentence of seven and one-half to fifteen years incarceration under both Indictments. In papers dated June 19, 2023 the defendant represented by new counsel, adopted prior counsel’s motion dated March 21, 2023 to withdraw the defendant’s guilty pleas and filed an additional motion to withdraw the defendant’s guilty pleas. In support of his motion, counsel for the defendant contends his plea was not knowingly and voluntarily entered because 1) He never would have entered a guilty plea if he had known that the sentence could be enhanced based on materially false allegations, 2) An Outley hearing would be insufficient to cure the deficiency of the defendant’s plea or to protect the defendant’s due process interests, 3) His prior attorney was ineffective for failing to challenge the defendant’s predicate felony statement and 4) Enhancement of the defendant’s sentence would be impermissible because the court made inappropriate threats to increase the defendant’s sentence solely because he asserted his right to file a motion to withdraw his guilty plea. Further, the defendant himself alleges in an affidavit of support dated September 14, 2023 to withdraw his guilty pleas on the grounds that he did not know he could challenge the status and constitutionality of his prior felony conviction by filing a CPL §440 motion before taking the plea, that his pleas were not knowingly and voluntarily entered because his prior attorney advised him that his prison time would be served at home, he is suffering from severe sleep apnea which requires surgery which he cannot receive in jail, that he was not in the correct mental mindset and had been heavily drinking alcohol when he entered his plea of guilty and that he did not fully understand what was going on or the intended promise. (aff of defendant). The People oppose the defendant’s motion in its entirety. Pursuant to CPL §220.60(3), “At any time before the imposition of sentence, the court in its discretion may permit a defendant who entered a plea of guilty to…part of the indictment. . . to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.” Whether to grant such a motion rests in the trial court’s sound discretion. (People v. Ward, 140 AD3d 903, 904 [2d Dept 2016].) Indeed, in deciding such motions “the nature and extent of the fact-finding inquiry rests largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances.” (Id. [quoting People v. Howard, 109 AD3d 487, 487 [2d Dept 2013].) Where a claim in support of a motion to withdraw a guilty plea relies on the defendant’s allegations, the court may reject those allegations on the basis that they are contradicted by the record. (see People v. Jackson, 170 AD3d 1040, 1040-1041[[2d Dept 2018].) Point One The defendant now contends that his plea was not knowingly and voluntarily entered and he should be allowed to withdraw his guilty plea. He alleges he never would have entered a guilty plea if he had known that his sentence could be enhanced based solely on materially false allegations. On October 7, 2023, the court informed the defendant prior to him entering pleas of guilty that if he failed to come to court for sentencing or was re-arrested, that his sentence could be enhanced by consecutive time for any reason with the exception of jaywalking or littering. (tr at 5-7) Defendant than pleaded guilty under Indictment No. 2784/2018 to Grand Larceny in the Third Degree (PL §155.35) and Scheme to Defraud in the First Degree (PL §190.65-1[a]) and under Indictment No. 870/2018 to Attempted Grand Larceny in the Second Degree (PL §110/155.40[1]). (tr at 11-14) The Court again discussed with the defendant the consequences of being re-arrested and informed him that if he failed to return to court on January 17, 2023 or was re-arrested for anything, with the exception of jaywalking or littering that he would be facing an enhanced sentence. The defendant made it very clear, under oath that he understood: The Court: Now, Mr. Khan, if you fail to come back to court on the agreed upon date of sentence of January 17, 2023 or are rearrested for anything, but we’ll excuse jaywalking, littering? The Defendant: I completely understand. Your Honor. The Court: Okay. If you fail to appear then the total sentence I’m going to give you, sir, will be seven and half to 15 years. Do you understand ? The Defendant: Completely understand. The Court proceeded to advise the defendant during the plea allocution for a second time that the consequences of him being re-arrested: The Court: And again, I already advised you, you can’t get arrested for anything? The Defendant: I will try — I will do — I promise you, nothing of the sort. The Court: Okay. Have you understood those conditions? The Defendant: Yes. It is clear from the record that the defendant clearly understood that any re-arrest would result in a possible enhanced sentence with the exception of jaywalking or littering. At no time was there a discussion between the Court, the defendant’s attorney or the defendant as to materially false allegations being the basis of an enhanced sentence. The defendant had an ample opportunity during the plea colloquy to voice any concerns to his attorney or to the Court that he did not fully understand the consequences of any re-arrest. Therefore, an enhanced sentence may be imposed on the defendant when he has violated an express condition of the plea agreement. (see People v. Holland, 218 AD3d 490 [2nd Dept 2023]; People v. Shealy, 195 AD3d 1047, 1048 [2nd Dept 2021].) Point Two The defendant alleges in his affidavit of support that when he plead guilty he was not in the correct mindset and had been heavily drinking alcohol. This point was never addressed by either counsel for the defendant in their moving papers to withdraw the defendant’s pleas of guilty. Nevertheless, the Court specifically addressed this issue with the defendant prior to him entering his guilty plea. The Court made the following record: The Court: Mr. Khan, at this time are you, sir, under the influence of alcohol or medication affecting your ability to answer my questions truthfully and voluntarily? The Defendant: No It is clear from the record that the defendant answers belied any notion that he had been drinking alcohol or that he was not in the proper mindset when he plead guilty. Again, the defendant had an ample opportunity during the plea allocution to advise his attorney or the Court that he did not want to continue with his pleas because he was under the influence of alcohol. His claim is in direct conflict with his acknowledgement at the time he entered his plea that he was not under the influence of alcohol. Therefore, the defendants claim is meritless. (see People v. Rodriguez, 33 NY3d 957[2019]; People v. Wares, 124 AD3d 1079, 1081[3rd Dept 2015].) Point Three The defendant claims that an Outley hearing would be insufficient to cure the deficiency of the defendant’s plea or protect the defendant’s due process interests. The defendant alleges that an Outley hearing would be insufficient to protect his claims of innocence related to the new arrest and would be insufficient to remedy the defect inherent in his original plea because the defendant did not knowingly consent to a material condition of the Court’s promised sentence. The transcript of the proceedings clearly indicates that for the defendant to receive the promised sentence he had to abide with the condition that he would not be re-arrested from the date he plead guilty till the date of sentencing: The Court: Okay. And again, I already advised you, you can’t get arrested for anything. The Defendant: I will try — I will do — I promise you, nothing of the sort. The Court: Okay. Have you understood those conditions? The Defendant: Yes. The Court: If you fail to comply with any one or more of these conditions, I will not be bound my sentence commitment. I will not permit you, sir, to withdraw your plea of guilty. I will be at liberty to sentence you, and you already heard what I can sentence you up to. The Defendant: Yes. The Court: Seven and a half to 15 years. The Defendant: Yes. The Court: Okay. Do you understand ? The Defendant: Yes, sir. It is clear from the record that the Court explained each of the conditions the defendant was required to follow to receive the promised sentence, including the condition that he not get re-arrested and the defendant affirmed that he understood each of the conditions. The defendant again had an ample opportunity to voice any concerns on at least four occasions during the plea colloquy if he had any concerns or did not understand the conditions imposed the Court. The colloquy completely refutes the defendant’s claim he did not consent to the material conditions of the plea and that he did not understand the intended promises. As to the defendant’s claim that an Outley hearing would be insufficient to protect his due process rights is misplaced. The purpose of an Outley hearing is to determine when a defendant has accepted a guilty plea expressly conditioned upon not being rearrested pending sentence, and is arrested between his plea and sentence, the court can enhance the defendant’s sentence. If there is a denial of involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the subsequent arrest is without foundation. (See People v. Outley, 80 NY2d 702[1983].) To comply with due process, the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate (Id at 712.) Therefore, an Outley hearing is the proper form of relief the defendant would receive prior to any enhanced sentence being imposed by the Court. The Court is only required to conduct a sufficient inquiry to determine if the defendant violated the plea agreement. not a mini-trial or evidentiary hearing. (see People v. Murdoch, 175 AD3d 1560, 1562[2nd Dept 2019].) Point Four The defendant in his affidavit of support to withdraw his pleas of guilty, claims that his prior attorney, Michael Horn advised him that his prison time would be served at home. Contrary to his claims, the defendant has failed to provide an affidavit from his prior attorney advising him that his prison term would be served at home, rather than in prison, nor has he explained what efforts he has made to obtain one. Moreover, the record is clear that when the Court discussed the terms of the plea and sentence that his sentence was to be served in jail and not at home: A.D.A. YI : Now, the sentencing, as per the defense’s request, will be January 17th of 2023 in Part K-12. If the defendant fails to pay the entire restitution by January 4th of 2023, the jail sentence of three and a half to seven years — I’m sorry, the D felony count, the sentence will be changed to three and a half to seven years plus the E felony conviction will carry a sentence of two to four years to run consecutively. And that will be in addition to the sentence of two to four years on Indictment No. 870 of 2019, which we’ll get to in a minute. So that will be at total of five and a half years to 11 years if the defendant fails to pay the entire restitution by January 4th. Mr. Yi: The final condition will be that if the defendant fails to appear for sentencing or is re-arrested the jail sentence changes. For the D felony count would be three and a half to seven years plus two to four years on the E felony to run consecutively. Along with two to four years incarceration on Indictment No. 870 of 2019, which will run consecutively for a total of seven and a half to 15 years. The Court: Is that your understanding, Mr. Horn? Mr. Horn: Yes Once again it is clear from the plea colloquy that the defendant’s sentences would be served in jail, not at home. The defendant with his attorney standing next to him during the plea was provided a fair and ample opportunity to voice his concern that he believed the jail sentence being imposed by the Court would be served at home, rather than in jail. The defendant instead remained silent. Point Five The defendant claims that his motion to withdraw his guilty pleas should be granted because he suffers from sleep apnea, a condition requiring surgery which he cannot receive in jail. The defendant’s conclusory remarks that his medical condition cannot be treated while incarcerated is unsupported by medical proof or other relevant documentation. His active participation in the plea proceedings and the ample opportunity to raise his medical condition to his attorney or to the Court contradict his claim and it is clear that defendant’s pleas were voluntary, knowing and intelligent. (see People v. Russell 79 AD3d 1530,1531, [3rd Dept 2010].) Point Six With respect to the defendant’s claim that his prior attorney was ineffective for failing to challenge the defendant’s predicate felony statement and that he did not know he could challenge the status and constitutionality of his prior felony conviction by filing a CPL §440 motion before taking the plea is unavailing. The record is clear that the defendant under oath, with his attorney present, admitted that he had been convicted of a prior felony, admitted that he was the person convicted and sentenced on a prior felony, did not deny the allegations in the statement and did not wish to challenge the constitutionality of the prior conviction: The Court: Now, Mr. Khan, the acceptance of this plea and the imposition of the promised sentence is conditioned upon my understanding that you have been previously convicted of a felony. The Defendant: Yes. The Court: Can the defendant please be arraigned as a second felony offender? The Clerk: — the district attorney’s office has filed a statement of predicate felony conviction. The statement alleges that you, under prior Indictment No. 204 of 2011 date, you were convicted on 1/25/2011 for the crime of Grand Larceny in the Third Degree in Queens County and you were sentenced on 12/12/2011, sentence was one to three years. The Defendant: That’s correct. The Clerk: Are you the person that was just mentioned in this statement? The Defendant: Yes. The Clerk: Do you wish to deny any allegations in this statement? The Defendant: No. The Clerk: Do you wish to challenge the constitutionality of the prior conviction? The Defendant: No. The Clerk: The defendant admits, your Honor. The Court: I find the defendant to be a second felony offender in this matter. The plea colloquy clearly indicates that the defendant fully understood the predicate felony statement filed against him and he had an ample opportunity during the colloquy to deny that he was the person mentioned in the predicate statement, the allegations and challenge the constitutionality of the prior conviction in the predicate statement. The defendant’s failure to object to, or controvert the use of, his prior felony conviction as a predicate felony, or request a hearing thereon, was a waiver of his right to challenge that conviction and it’s validity. (see People v. Odom, 61 AD3d 896 [2nd Dept. 2009]; People v. Cruz, 56 AD3d 570[2nd Dept 2008].) Further, the defendant’s attorney failure to challenge the predicate felony statement at the time of plea did not rise to the level of ineffective assistance of counsel when the defendant failed to request that counsel challenge the predicate statement at the time of the plea. (see People v. Medina, 129 AD 3d 429[1st Dept 2015].) Further, the defendant’s claim that he did not know he could challenge the status and constitutionality of the predicate statement by filing a CPL §440.10 motion to vacate the judgement before the plea is premature because the defendant has not been sentenced. Point Seven The defendant claims that his pleas of guilty were not voluntarily and his motion to withdraw his guilty pleas should be granted because the court made inappropriate threats to the defendant that his sentence would be enhanced for asserting his right to file said motions. The defendant alleges that the Court offered the defendant an enhanced sentence of three to six years, only if the defendant was to withdraw his motion and accept the enhanced sentence offered by the Court before the Court issued a decision on his motion. At no time did the Court make any impermissible threats to the defendant preventing the defendant from filing additional motions to withdraw his guilty pleas. The record is clear and belies the defendant’s claims: The Court: Let the record reflect the following. I have had a side-bar conference with counsel. I informed counsel that basically, on the motion to withdraw the plea, since there has not been a decision yet and since prior counsel did not file any additional motions which he had requested, the Court did not render a decision. I have now been informed that Ms. Chorny wants to file additional motions on your behalf, Mr. Khan. I will allow her to do that. Let the record reflect that I was prepared today, before rendering a decision, to give back the original offer I made prior to you filing — your prior attorney filing motions to withdraw the pleas of three to six years total, no consecutive time. Your attorney has indicated to me that you’re rejecting that offer, is that correct? The Defendant: Yes, your Honor. Ms. Chorny: That’s not fully correct. The Court: Ms. Chorny, excuse me. I am speaking. Ms. Chorny: Understood. But I would like to speak on my client’s behalf. The Court: You’re going to speak on your client’s behalf as long as your client is aware of what my offer is. Ms. Chorny: He is aware. The Court: I am making a record, thank you. with no further interruptions. You’re aware of my offer; am I correct? The Defendant: Yes, sir. The Court: And you don’t want that offer today; am I correct? The Defendant: No, Sir. The Court: That’s fine, Ms. Chorny now you can make your record. Ms. Chorny: Your Honor, at this time, we’re not accepting the offer. The Court: That’s fine. Ms. Chorny: I do believe it is a harsh and excessive sentencing and enhancement from the promise, and I do believe it’s in violation of his right to exercise all his defenses and to submit his motion to withdraw. The Court: That’s fine. It is clear from the record that at no time did the Court threaten the defendant with an enhanced sentence because he wished to proceed with his motion to withdraw his guilty pleas. On the contrary, the Court agreed to allow counsel to adopt prior counsel’s motion and to file additional motions on behalf of the defendant. The fact that the Court made an enhanced offer of three to six years prior to counsel filing additional motions on behalf of the defendant and prior to the court issuing a decision is neither inappropriate or a threat to the defendant. At no time during the colloquy did the defendant or counsel indicate that the defendant felt threatened because he wished to file motions to vacate his guilty pleas and rejected the Courts offer. On the contrary, even after rejecting the Courts offer the defendant was given the opportunity to file his motions to withdraw his pleas with no threats or pressure from Court to accept the offer. When a defendant refuses a lesser offer even when confronted with the risk of more severe punishment, he may feel pressure to accept the offer, but such pressure does not render a guilty plea involuntary. (see, People v. Hollman, 197 AD3d 484[2nd Dept 2021].) For all these reasons, the defendant’s motion to withdraw his guilty pleas is denied. This constitutes the decision and order of the court. The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: December 18, 2023
