                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered:    November 17, 2016               106099
                                                        107844
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

BRETT W.,
                    Appellant.
________________________________


Calendar Date:    October 17, 2016

Before:    Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

                              __________


     G. Scott Walling, Schenectady, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                              __________


Rose, J.

      Appeals (1) from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered September 3, 2013, which
sentenced defendant upon her adjudication as a youthful offender,
and (2) by permission, from an order of said court, entered
September 17, 2015, which denied defendant's motion pursuant to
CPL 440.10 to vacate the judgment of conviction, after a hearing.

      In February 2013, defendant, a 17-year-old high school
student, sold 1½ brownies purportedly containing marihuana to a
classmate in school. After that classmate and another student
consumed the brownies and became ill, defendant was charged in a
felony complaint with criminal sale of marihuana in the second
degree and in an information with the misdemeanor of endangering
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the welfare of a child. By letter dated March 6, 2013, the
People made a plea offer to dispose of all pending charges
against defendant in exchange for her agreement, by April 6,
2013, to plead guilty to endangering the welfare of a child. The
proposed plea agreement included a sentence recommendation of a
youthful offender adjudication and three years of probation.
After receiving no response from defendant, the People obtained
an indictment charging defendant with criminal sale of marihuana
in the second degree and endangering the welfare of a child.
Pursuant to a plea agreement, defendant pleaded guilty to the
felony of attempted criminal sale of marihuana in the second
degree. Consistent with the terms of the plea agreement,
defendant was adjudicated a youthful offender and sentenced to
120 days in jail and five years of probation. Defendant
subsequently moved pursuant to CPL article 440 to vacate the
judgment of conviction, claiming, among other things, that she
was never timely informed of the initial March 2013 plea offer
and, therefore, received ineffective assistance of counsel.
Following an evidentiary hearing, County Court denied the motion,
finding that defendant failed to establish that her counsel was
ineffective by not conveying to her the People's initial, more
favorable, plea offer. Defendant now appeals from the judgment
and, with permission, from the order denying her motion.

      Defendant claims on her appeal from the denial of the CPL
article 440 motion that she was deprived of the effective
assistance of counsel based upon defense counsel's failure to
timely inform her of the March 2013 proposed plea agreement.1 In
this context, "'[m]eaningful representation by counsel includes
the conveyance of accurate information regarding plea
negotiations, including relaying all plea offers made by the
prosecution'" (People v Brunson, 68 AD3d 1551, 1555 [2009], lv
denied 15 NY3d 748 [2010], quoting People v Rodgers, 8 AD3d 888,
890 [2004]; see Missouri v Frye, 566 US ___, ___, 132 S Ct 1399,
1407-1410 [2012]). "In order to prevail on an ineffective
assistance of counsel claim based upon the defense counsel's


      1
         Defendant does not raise any arguments relative to her
direct appeal.
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                                                 107844

failure to adequately inform the defendant of a plea offer, the
defendant has the burden of establishing that the People made the
plea offer, that the defendant was not adequately informed of the
offer, that there was a reasonable probability that the defendant
would have accepted the offer had counsel adequately communicated
it to him [or her], and that there was a reasonable likelihood
that neither the People nor the court would have blocked the
alleged agreement" (People v Nicelli, 121 AD3d 1129, 1129-1130
[2014] [citations omitted], lv denied 24 NY3d 1220 [2015]; see
People v Fernandez, 5 NY3d 813, 814 [2005]; People v Maldonado,
116 AD3d 980, 980-981 [2014]). The remedy for a meritorious
"claim of ineffective assistance of counsel that results in a
harsher sentence than that initially proposed to the defendant
pursuant to a plea agreement is to direct the People to reoffer
the plea agreement" (People v Maldonado, 116 AD3d at 981; see
Lafler v Cooper, 566 US ___, ___, 132 S Ct 1376, 1391 [2012]).

      The record evidence demonstrates that the initial plea
offer was made by the People in writing and communicated to the
Conflict Defender's Office, and this initial offer was more
favorable to defendant than the plea agreement to which she
ultimately agreed. In addition, defendant's uncontroverted
testimony at the evidentiary hearing reflects that she would have
accepted the People's initial offer. While the testimony
indicates that, despite purported attempts, neither defendant nor
defense counsel was able to establish communication with the
other during the relevant time period, there is no evidence
demonstrating that defendant was apprised or aware of the initial
plea offer prior to its expiration. Although there is an
indication that defendant, among other things, provided the
assigned counsel coordinator with her mother's cell phone number
instead of her own, the record evidence demonstrates that there
were other means by which defendant could have been contacted or
spoken to in person. In addition, the hearing testimony
establishes that defendant was not afforded an opportunity to
meet with her defense counsel prior to the expiration of the plea
offer and was not able to reach her attorney by telephone despite
making at least one attempt following her initial court
appearance. Nor is there any record evidence that suggests that
either the People or County Court would have blocked the initial
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                                                   107844

proposed plea agreement. Accordingly, under the circumstances
presented here, we find that defendant met her burden of
establishing that she received ineffective assistance of counsel
and, therefore, we grant defendant's CPL 440.10 motion, vacate
the judgment of conviction and direct the People to reoffer the
initial plea agreement (see Lafler v Cooper, 132 S Ct at 1391;
People v Maldonado, 116 AD3d at 981). In light of our decision,
defendant's remaining contentions need not be addressed.

     Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.

      ORDERED that the order is reversed, on the law, motion
granted, judgment vacated, and matter remitted to the County
Court of Franklin County for further proceedings not inconsistent
with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
