DECISION AND ORDER Defendant, DARMIN BACHU moves for an Order pursuant to CPL §440.10 (1) [h] to vacate the judgment of his conviction in motion papers filed January 26, 2024. The People have filed an Affirmation in Opposition to Defendant’s Motion to Vacate Judgment, dated April 11, 2024. The Defendant has also filed a Reply to the People’s Opposition dated April 18, 2024.1 Factual Background This matter stems from an investigation conducted by the Criminal Investigations Division of the New York State Department of Taxation and Finance.2 This investigation revealed that the defendant, who is a practicing attorney, failed to file personal income tax returns for three years. As a result, this matter was referred to the Queens District Attorney’s Office to investigate and, if appropriate, prosecute for tax law violations and other related offenses. Based upon an investigation by the District Attorney’s Office, in November 2016 this matter was presented to the Grand Jury whom indicted the Defendant with three counts of Criminal Possession of Stolen Property in the Third Degree (PL §165.50); Grand Larceny in the Fourth Degree (PL §155.30[1]); Criminal Possession of Stolen Property in the Fourth Degree (PL §165.45[1]); Offering a False Instrument for Filing in the First Degree (PL §175.35); three counts of Criminal Tax Fraud in the Fourth Degree (Tax Law §1803); Repeated Failure to File Tax Returns (Tax Law §1808); and four counts of Criminal Tax Fraud in the Fifth Degree (Tax Law §1802). On February 9, 2017 defendant’s trial counsel submitted an omnibus motion seeking, inter alia, dismissal of the charges as legally insufficient, and dismissal based on selective prosecution. In a Decision and Order dated March 13, 2017 Judge Latella dismissed the three counts of Criminal Possession in the Third Degree (counts one through three) and the three counts of Criminal Tax Fraud in the Fourth Degree (counts seven through nine). The Court, however, denied defendant’s motion to dismiss based on selective prosecution. On April 27, 2017 defense counsel moved to reargue Judge Latella’s Decision arguing that the defendant was a victim of selective prosecution, which motion was denied on May 1, 2017. On May 30, 2017 the defendant moved again for dismissal arguing that counts eleven and twelve charging Criminal Tax Fraud in the Fifth Degree were barred by the statute of limitations. Said motion was denied by Judge Hirsch in a Decision and Order dated July 24, 2017, which stated that the counts were timely as they were based on a continuous course of conduct. In April 2018, defendant moved to dismiss the indictment in the interest of justice arguing that the reasons for his “misconduct” was “carelessness, or a foolish tendency on [his] part to put things off” and that he “accept[ed] full responsibility for his actions”. In a Decision and Order dated June 11, 2018, Judge Zayas denied defendant’s motion holding that the dismissal, where the defendant is an attorney and charged with defrauding the state, would impact the public’s confidence in the legal system in a meaningful way, and there were no rare and compelling reasons which would warrant dismissal in the interest of justice. Thereafter in October 2018, the defendant moved to dismiss counts four, Grand Larceny in the Fourth Degree, count five Criminal Possession of Stolen Property in the Fourth Degree, and count six Offering a False Instrument for Filing in the First Degree arguing that these charges could not be prosecuted under the Penal Law, but rather were covered under the City Unincorporated Business Tax Law. Judge Zayas, in a Decision and Order dated November 27, 2018, denied this motion. Lastly, defendant moved the court in February 2019 for an order dismissing counts four, five, and six on the grounds that Queens was not the proper venue. This motion was denied in a Decision and Order of Judge Zayas dated February 22 2019. This matter was scheduled for trial before Judge Pandit-Durant. On March 5, 2019, after having selected ten jurors, the People offered and the defendant agreed to enter a guilty plea to Attempted Criminal Possession of Stolen Property in full satisfaction of any and all charges in the indictment. Judge Pandit-Durant explicitly stated on the record that “[t]his plea offer [was] being made at the request of the defendant, and for the benefit of the defendant”, to which both defendant and his counsel indicated was their understanding. The defendant, an attorney himself, clearly stated that he wanted to plead guilty to Attempted Criminal Possession of Stolen Property in the Fifth Degree, a B misdemeanor; that he had ample time to discuss this with his attorney; that he was pleading guilty of his own free will and that no one was forcing him to do so; that he understood he was waiving his rights to a trial; and that he understood and agreed to waive his right to appeal and that he was doing so of his own free will. The defendant admitted guilt that he attempted to possess money owned by the New York State Department of Taxation and Finance, the court accepted the defendant’s guilty plea and sentenced him, upon the People’s recommendation, to a Conditional Discharge. Defendant has not filed an appeal. Defendant now moves to vacate his judgment of conviction on three grounds. First, defendant claims he was deprived of his constitutional right to effective assistance of counsel because his trial counsel failed to inform him that he was pleading guilty to a charge that was barred by the statute of limitations. Second, defendant claims he was deprived of his constitutional right to due process because the People failed to disclose material and exculpatory evidence. Lastly, defendant claims he was deprived of his constitutional right to equal protection because the prosecution against him was a selective and retaliatory. Ineffective Assistance of Counsel A defendant has a right under both Federal and State Constitutions to receive effective assistance of counsel in the plea process. The Federal Constitution requires a Defendant claiming ineffective assistance of counsel to prove that counsel’s performance fell below an objective standard of reasonableness and that the outcome of the proceedings would have been different, but for defense counsel’s deficient performance. In Hill v. Lockhart (474 US 52 [1985]), the Supreme Court applied the two-part standard outlined in Strickland v. Washington, 466 US 668 to evaluate a claim of ineffectiveness of counsel where a Defendant accepts a plea bargain on the mis-advice of counsel. The Defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. Thus, in order to satisfy the second “prejudice” prong, the Defendant must establish that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty, and would have insisted on going to trial (Hill v. Lockhart, 474 US 56-60). Similarly, under State authority, in an ineffective assistance claim, the Defendant must show prejudice in that but for counsel’s error, the Defendant would have insisted on going to trial (see, People v. Rodriguez, 188 AD2d 623 [2 Dept. 1992], lv. denied, 81 NY2d 891). In New York, as long as the evidence, the law and the circumstance of a particular case, viewed in the totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met (People v. Baldi, 54 NY2d 137 [1981]). Where a Defendant enters a guilty plea and receives a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation (see, People v. McClure, 236 AD2d 633 [2nd Dept. 1997]; lv. denied, 89 NY2d 1097). A defendant’s disagreement with counsel’s unsuccessful tactics is not enough to show that meaningful, but unsuccessful representation amounted to ineffective assistance (see, People v. Mancini, 210 AD2d 434 [1994]). In this case, defendant argues that trial counsel allowed him to plead guilty to the count of Attempted Criminal Possession of Stolen Property in the Fifth Degree which defendant contends was barred by the statute of limitations. The People contend that the defendant failed in his burden to demonstrate the absence of a strategic reason for counsel’s failure to challenge the B misdemeanor as time barred. The defendant was facing two E felonies, Criminal Possession of Stolen Property in the Fourth Degree and Repeated Failure to File Tax Returns on the indictment, which could have resulted in a maximum prison term from 1 1/3 to 4 years (PL §70.00(2)(e), (3)(b), as well as automatic disbarment (Judiciary Law §90(4)(a)). The defendant’s plea to a B misdemeanor with a sentence of conditional discharge was clearly a huge benefit to defendant and his ability to continue in his career.3 Defendant’s allegations are insufficient to satisfy the prejudice requirement under both Federal and State Law. Defendant has not addressed his likelihood of success at trial, the strength of the prosecutor’s case, the availability of a defense or a comparison of the sentence promised with the potential sentence if convicted after trial (see, People v. McDonald, 296 AD2d 13 [2002]). He has not established how the outcome of the proceedings would have been different if not for defense counsel’s alleged mistakes. As the People’s Affirmation in Opposition indicates, defense counsel did in fact successfully advocate for the Defendant, as demonstrated by the extensive motion practice which resulted in the dismissal of several of the counts of the indictment. Further, defense counsel negotiated a beneficial plea, to which the defendant, a practicing attorney, willingly and voluntarily entered into. Accordingly, this Court does not find merit to defendant’s claim of ineffective assistance of counsel. Defendant’s Claim that the People Failed to Disclose Brady Material The charges of Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fourth Degree, and Offering a False Instrument in the First Degree was based upon a claimed tax credit in defendant’s 2011 State tax return which defendant was not entitled to. Defendant claims that the People had obtained information from the defendant’s accountant who prepared the 2011 tax return that defendant did not understand the credit, and that the defendant just signed the tax return without reviewing the same. Defendant argues that this was exculpatory evidence and a Brady violation. The People argue that the defendant was already in possession of the alleged exculpatory information and that the Brady doctrine does not require the prosecutor to supply a defendant with evidence that the defendant knew of or should reasonably have known of (citing People v. LaValle, 3 NY3d 88). Specifically, the People contend that the defendant was aware of the accountant’s position that the defendant did not understand the tax law. The People point to defendant’s affidavit where he states he was confident that the accountant would testify that he did not intentionally claim a credit he was not entitled to and relied on his accountant’s expertise therein. The People further argue that the accountant’s opinion as to what the defendant understood about the tax law was not exculpatory, but rather speculative. Further, the People contend that assuming arguendo the information was material and exculpatory, where a defendant pleads guilty, and the People have suppressed exculpatory evidence, the defendant must establish that said evidence would have significantly affected the decision to plea rather than proceed to trial. At the time of trial, the charges surrounding the tax credit were not the only felony charges that defendant was facing. Defendant was also facing charges of Repeated Failure to File Tax Returns and two counts of Criminal Tax Fraud in the Fifth Degree, all which stem from defendant’s failure to file tax returns for three consecutive years. Had the case proceeded to trial, evidence of whether or not defendant failed to file tax returns to prove these charges would have been totally separate and unrelated as to whether the defendant understood the tax credit and relied on his accountant’s expertise. Defendant’s claims that he would not have entered into the agreed upon plea had the People disclosed the information received from his accountant is suspect at best. It is well settled that Brady does not require that a prosecutor “supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature” (People v. McClain, 53 AD3d 556 [2008]; People v. Doshi, 93 NY2d 499, 506 [1999]; This Court finds that the information, claimed by defendant to be exculpatory, was already known to defendant. Therefore, contrary to the defendant’s contention, there was no Brady violation (see Brady v. Maryland, 373 US 83 [1963]) in this case. Selective and Retaliatory Prosecution Defendant now claims that this matter was brought against him by the Queens County District Attorney’s Office in retaliation to defendant’s involvement in the vacatur of a judgment of murder conviction against a one Tejpal Singh in 2012. Defendant makes allegations that an Assistant District Attorney was out to “get” him and that the underlying indictment was at the behest of the ADA’s quest to “get” Mr. Bachu. Defendant also argues that the charges against him were selective in that the People did not prosecute similarly situated individuals. However, this matter was referred to the District Attorney’s office by the NYS Department of Taxation and Finance. It was upon this referral that the underlying matter was commenced. Further, defendant’s claim that the People never turned over the letters from the Sheriff’s Department and Department of Taxation is belied by the fact that in defendant’s omnibus motion he made the very same motion for selective prosecution claiming the Sheriff’s department initiated the investigation and prosecution in retaliation, which motion was denied by the court. With respect to defendant’s claim of retaliatory prosecution, the vacatur of Tejpal Singh’s murder conviction was in 2012. Four years later, in the defendant’s omnibus motion, as well as the numerous motions to dismiss that followed, defendant never raised this issue. It is noted that defendant was not the attorney of record for Mr. Singh. Rather, defendant merely assisted Mr. Singh’s attorney by interviewing witnesses and allowing him to use his office. Defendant’s arguments are specious at best. It is well settled that in order to establish a claim of unconstitutional selective enforcement of penal law, a litigant must show that the law was enforced with both a “unequal hand” and an “evil eye”. That is there must not only be a showing that the law was not applied to others similarly situated, but also that the selective prosecution was deliberately based upon an impermissible standard, to wit; race, religion or some other arbitrary classification. (People v. Blount, 90 NY2d 998 [Ct. App. 1997]). A defendant claiming selective prosecution must meet the heavy burden of establishing that the prosecution administered the law with an evil eye and unequal hand. (People v. Goodman, 31 NY2d 262 [Ct. App. 1972]). This defendant has not met this burden. First, defendant has not shown how the prosecution of this matter, which was referred to the District Attorney, was selective, that it was not applied to others similarly situated. Defendant, an officer of the court, was charged with, inter alia, failing to file tax returns for three years, as well as claiming a tax credit based upon a payment that was not made. Defendant presents no similarly situated individuals who were not prosecuted. Further, defendant’s claim that the District Attorney administered the law with an evil eye is meritless. Allegations that the District Attorney’s office was out to “get” defendant because he assisted Mr. Singh’s attorney some three years prior could had been raised in any of the several motions to dismiss made previously. The fact that the People offered a B misdemeanor from an E felony to dispose of the underlying matter, and that this matter was REFERRED to the District Attorney’s Office, is evidence that the People did not selectively prosecuted defendant for an evil purpose. Lastly, the defendant’s guilty plea in this matter constitutes not only a waiver of certain rights associated with a trial but is in effect a forfeiture of the right to renew arguments made before his plea (People v. Taylor, 65 NY2d 1). A plea of guilty is a waiver of all nonjurisdictional defects, which includes a claim of selective prosecution (People v. Rodriguez, 55 NY2d 776 [Ct. App. 1981]. Therefore, defendant’s current motion to vacate the judgment based on selective prosecution must be denied. Accordingly, for the foregoing reasons, the Defendant’s motion is denied in its entirety. This constitutes the decision and order of the Court. Dated: May 24, 2024
