Posted On: July 10, 2013 by Stephen Bilkis

Counsel's competence is questioned

The criminal defendant and two co-defendants were indicted for multiple counts of forgery and grand larceny for having endorsed and cashed New York State employment checks over a three year period. The defendant was allowed to plead guilty to one count of Grand Larceny in the Second Degree and was to receive a sentence of 1-1/2 to 3 years. The plea was vacated because the minimum sentence for Grand Larceny in the Second Degree was 2 to 4 years. However, the parties agreed to allow the defendant to plead guilty to the reduced, lesser included, crime of Attempted Grand Larceny in the Second Degree and receive the previously agreed upon sentence of 1-1/2 to 3 years. In his allocution the defendant stated that the value of the stolen property, which he received, was less than $1500.00 while the elements of the crime of Grand Larceny in the Second Degree required that the value of the property exceed that amount. In the minutes of the plea proceeding supplied by the defendant, he is not advised of his right to appeal.

The defendant's motion sought to have his sentence set aside twenty-six years after it was imposed. The grounds for such relief are statutory and require a showing that the sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law. Bail reduction was not sought.

The gravamen of the defendant's motion is that he was not advised of his right to appeal at sentencing, which is not a ground for Criminal Procedure Law (CPL) relief. The motion however, mentioned that his appealable issue would be that his plea allocution was defective and his counsel was ineffective for not advising him of his right to appeal making his sentence unauthorized. These were viable grounds and the court therefore considered his CPL motion. The defendant's reply added no legal arguments to his original motion. It refuted the complainant's Answer and reiterated that which was already before the court.

The defendant's plea of guilty to one count of Grand Larceny in the Second Degree was based on the understanding that he would receive a reduced sentence for his plea, to cover all of the crimes charged in the indictment. Realizing that the sentence was not authorized for that charge, the defense counsel, the prosecutor and the court allowed the defendant to plead guilty to a lesser included charge of Attempted Grand Larceny in the Second Degree which permitted the lesser sentence.

The Grand Jury found sufficient evidence to indict the defendant and two co-defendants for multiple counts of forgery and grand larceny for having endorsed and cashed New York State employment checks over a three year period. The defendant's self-serving statement at his allocution, that his share of the proceeds was less than $1500.00, did not mean that the complainant could not prove otherwise at trial.

The defendant's allegation of ineffective assistance of counsel is belied by the totality of the facts and circumstances surrounding defendant's plea and sentencing. The defendant's attorney was sufficiently effective to convince the prosecutor and the court to permit the defendant to plead to one reduced count of a multiple count felony indictment wherein he was sentenced to the minimum amount of permissible time in prison to be served concurrently with a previously imposed sentence. There is nothing before the court to suggest that the defendant's counsel was ineffective during the pretrial stages of the case or during his plea and sentencing.

The court thus found that the defendant's sentence was not unauthorized, illegally imposed or otherwise invalid as a matter of law. Accordingly, the defendant's motion to reargue and his application for a Writ of Error Coram Nobis (an order by an appeals court to a lower court to consider facts not on the trial record which might have changed the outcome of the lower court case if known at the time of trial. Coram nobis is a Latin term meaning the error before us) are denied.

Pleading guilty is admitting that you neglected your duty as a responsible citizen. If you want to make sure that the person who harmed you or a family member will serve his jail time, consult a Kings County Criminal Lawyer or a Kings County Grand Larceny Attorney from Stephen Bilkis and Associates.