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Erroneous advice conveyed by a criminal defense lawyer to a client regarding parole eligibility — and the defendant’s reliance on that information in rejecting a plea bargain — can be deemed constitutionally ineffective assistance of counsel, a Northern District of New York federal judge has held. In a peculiar case where neither defense counsel, the prosecution nor even the trial judge knew that New York sentencing laws had changed, U.S. District Judge Lawrence E. Kahn granted a sex offender’s writ of habeas corpus and significantly reduced his sentence. ” ‘Ignorance of the law’ has never been a shield for a defendant and it certainly cannot be used as a sword against him when his own counsel, along with the prosecutor and the court, were ignorant of the law,” Kahn held last week in Suliman D. Aeid v. Floyd G. Bennett, 99-CV-2088. The ruling stems from a writ brought pro se by a man who turned down a plea bargain and was convicted at trial of two counts of first-degree sodomy and single counts of attempted first-degree rape and second-degree menacing. Suliman D. Aeid was sentenced by Onondaga County, N.Y., Judge J. Kevin Mulroy to a 12-to-24-year term for the gunpoint molestation of a Syracuse barmaid. Aeid is incarcerated in the Elmira state prison in New York. Records show that during pretrial plea bargain negotiations, Aeid was offered a sentence of 5-to-15 years. Aeid contends he was advised by counsel, Thomas Lenkiewicz of Syracuse, N.Y., that his maximum exposure was 8 1/3 to 25 years. The offer was rejected and it was not until later that the court, the prosecution and the defense realized that the sentencing laws had changed approximately a year earlier. Under the old law, the top count of the indictment, sodomy, carried a maximum term of 25 years, and convicts were required to serve one-third of the maximum before becoming eligible for parole. Thus, if that law was in effect in 1996, when Aeid was convicted, he would have faced no more than 8 1/3 to 25 years in prison. But the law had changed effective Oct. 1, 1995, apparently to the surprise of Lenkiewicz, not to mention his client. The new law requires that violent felons serve at least one-half the maximum term imposed. At sentencing, when all the parties finally became aware of the change, Judge Mulroy set the maximum at 24 years, which meant the mandatory minimum was 12 years. Aeid, realizing then that if he had accepted the plea bargain he would have been eligible for parole after 5 years rather than 12 years or even 8 1/3 years, brought a writ of habeas corpus. In a report-recommendation issued on Sept. 26, U.S. Magistrate Judge David R. Homer recommended granting the writ. GOOD ADVICE Last week, Judge Kahn accepted that advice and reduced the sentence to 8 1/3 to 16 2/3 years. That makes Aeid eligible for parole after 8 1/3 years, which is when he would have become parole eligible if Lenkiewicz’s advice was correct. Judge Kahn said that result is fair, since when Aeid was of the mistaken belief that a conviction could result in a sentence that would make him eligible for parole after 8 1/3 years, he rejected a plea offer that would have offered parole eligibility in five years. Judge Kahn said there is considerable precedent to establish that Lenkiewicz had no responsibility whatsoever to advise Aeid of his parole eligibility date. However, once the lawyer offered that advice, he had to be right, Kahn said. “While there is no duty imposed upon counsel to inform his client of parole eligibility, when counsel does inform his client of statutorily derived minimum terms of incarceration for parole eligibility, counsel must be correct in his advice,” Judge Kahn said. “Where the court, the prosecutor, and his defense counsel all informed petitioner that he would be eligible for parole release consideration after serving one-third of his sentence, petitioner had every right to trust in the information given him and make his decision to accept the plea offer or proceed to trial upon such information.” Assistant Attorney General Senta Siusa of Syracuse appeared for the prosecution. Judge Mulroy has since been removed from office for racial and ethnic slurs and for abusing his authority in other cases. Coincidentally, on the same day that Judge Kahn accepted Magistrate Judge Homer’s recommendation in the Aeid case, the magistrate judge issued another report to Judge Kahn in another writ. In that matter, Detroy Livingston v. Victor Herbert, 00-CV-1698, Judge Homer recommended denial. Livingston got 18-years-to-life tacked on to the sentence he was already serving in state prison when he was convicted after a jury trial of promoting prison contraband. In his writ, Livingston claimed ineffective assistance and other infirmities, all of which were rejected by Judge Homer. Assistant Attorney General Steven H. Schwartz appeared for the state.

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