jail cells

Editors’ Note: This article has been updated to reflect a Correction.

Evading New York’s plea bargaining restrictions by “re-arresting” a defendant charged with a violent felony and allowing him to plead guilty to a non-violent felony is illegal, a Manhattan judge has ruled in an ineffective assistance case.

Supreme Court Justice Edward McLaughlin’s holding emerged in a matter where a repeat offender was apparently unaware that if he rejected a plea offer of seven years and was convicted at trial he would face a prison term of at least 16 years to life.

Neither the judge at a pretrial hearing, nor the prosecutor and defense counsel had realized the implications until the defendant was convicted by a jury and faced a lengthy stint in prison, according to the decision.

McLaughlin (See Profile) said the defense attorney was professionally obligated to know and explain the sentencing situation to his client, and his failure to do so constituted ineffective assistance of counsel. But since the plea offer was illegal, the defendant was not compromised, the judge said.

People v. Jimenez, 2314/2010, centered on what McLaughlin described as “a transparent effort to evade the guilty-plea restrictions” in state law.

Here, defendant Pedro Jimenez was arrested in the beating and robbery of an elderly man. Jimenez, who already had two prior violent felony convictions on his record, was indicted on charges of second and fourth-degree criminal possession of a weapon.

At a pretrial hearing, Justice Lewis Bart Stone wrongly advised Jimenez that as a predicate violent felony offender he faced a minimum of seven years in prison and a maximum of 15.

Jimenez, unaware—as apparently was the judge, the prosecutor and defense counsel—that he actually faced a 16-year minimum on the indicted charges, refused to bargain for a seven-year sentence. He was convicted and sentenced by McLaughlin to 16-years-to-life.

The defendant challenged the conviction through a motion under CPL 440.10, arguing ineffective assistance.

McLaughlin agreed with the defendant that his attorney, George Sheinberg of Brooklyn, should have known and explained the consequences of going to trial.

The judge said that even though both Stone and the prosecutor, Assistant District Attorney Alyssa Gunther, also misconstrued the sentencing law, that did not relieve Sheinberg of his duty to set the record straight.

“In this case, defense counsel’s performance during plea bargaining was constitutionally deficient,” McLaughlin wrote. “Defense counsel’s mistake cannot be deemed reasonable because the district attorney and the pretrial hearing court had made the same mistake.”

But McLaughlin said the defendant is not entitled to relief because the potential plea bargain would have been illegal.

Court records show that at the CPLR 440.10 hearing, Assistant District Attorney William Mahoney, the trial division bureau chief, stated that in order to provide Jimenez with the proposed seven-year sentence, officials would have had to conduct “an end run around the sentencing restrictions” to offer what the prosecution deemed a fair sentence.

Mahoney said that would have entailed re-arresting the defendant, arraigning him on a new felony complaint, filing a superior court information to replace the indictment and then having the court dismiss the indictment.

Mahoney, according to the decision, acknowledged that the “end run” might not be legal and noted that while the Court of Appeals has not addressed the issue, the Second and Third Departments of the Appellate Division had suggested it was probably illegal.

Mahoney told the court that the procedure is used infrequently by the Manhattan District Attorney’s Office—fewer than 15 times in the past 15 years—but suggested that he likely would have approved it in the Jimenez case.

McLaughlin said an attempt to evade plea bargaining restrictions in CPL 220.10, which restricts the ability of a defendant charged with a violent felony to plea bargain to a nonviolent crime, would have amounted to “an improper circumvention of state sentencing statutes originally enacted to limit judicial discretion.” He said Sheinberg’s “failure to obtain this illegal plea bargain cannot support a claim of ineffective assistance of counsel.”

Sheinberg, in an interview, insisted he had apprised his client of the sentencing ramifications, and said that if there was any error on his part, it was his failure to make a record.

On the 440.10 motion, Jimenez was represented by Nicolas Schumann-Ortega and Claudia Trupp of the Center for Appellate Litigation.

“We are disappointed with the result and we will be filing a motion for leave to appeal, and hope the Appellate Division will find that he was denied effective assistance of counsel,” Schumann-Ortega said.

Gunther argued for the prosecution. The district attorney’s office declined comment.