Defendant Tyshawn Parker pled guilty in 2014 to Assault in the First Degree and was sentenced to an agreed-upon determinate term of imprisonment of seventeen years. The conviction was affirmed (People v Parker, 149 AD3d 1567 [4th Dept 2017]).

He moved pursuant to CPL 440 to vacate the conviction, and this court granted him a hearing and assigned counsel to represent him.

In the decision that granted the hearing, the court limited the issues to be considered to the following:

1) Whether counsel's failure to investigate failure to "investigate or call exculpatory witnesses with regard to . . . mental health records" constituted ineffective assistance of counsel (see People v Nau, 21 AD3d 568, 568-69 [2d Dept 2005]), and

2) Whether defendant's plea was not intelligent and voluntary, in that his statement that he was waiving all defenses, including affirmative defenses, was not entered "knowingly, voluntarily, and intelligently," in that he was not made aware of the defense of not guilty by reason of mental defect.

At the hearing, the defendant testified, as did his prior counsel Sonya Zoghlin. [*2]Defendant's medical records detailing his history of treatment were received into evidence. What follows are the Court's Findings of Fact and Conclusions of Law based on the testimony it finds credible and accurate.

FINDINGS OF FACT

Defendant was found guilty in Ontario County Court of, among other charges, kidnapping in the second degree and attempted assault in the first degree, relative to an incident in which his girlfriend was the victim. The attempted assault occurred in 2013 and judgment of conviction was rendered on January 3, 2014. He received a sentence of 15 years in DOCCS plus a period of post-release supervision.

He was subsequently charged in Monroe County Court with assaulting the same girlfriend, in an incident that occurred on March 28, 2013, and prior to the incident in Ontario County. He had called 911 to report that he had come home after being out all night and saw that his girlfriend had been beaten. He went to see her in the hospital. He gave a statement to the police to that effect. He was not charged immediately, in fact, not until after the incident in Ontario County.

According to medical records which were received into evidence (the records were attached to the defendant's 440 motion as Exhibit B) defendant has been treated for many years for mental health problems, having been diagnosed with bipolar disorder, schizophrenia and/or schizo-affective disorder. He had been hospitalized for a time (six days) beginning on March 10, 2012, coming to the hospital on a "mental hygiene" arrest for reported "bizarre behavior," which included "eating drywall." At the hospital he reported having "derogatory hallucinations," and that he was "hearing and seeing things." It was noted that he was "moody" but not "homicidal or suicidal." He was discharged having expressed his willingness to get back on medication. His discharge diagnosis was schizoaffective disorder. His prognosis was fair. He was discharged without a plan for ongoing, outpatient mental health services. One month prior to the March 28 assault he had sought outpatient care.

In the stated opinion of a treatment provider, at no time was he considered a danger to himself or others, and it was believed by medical personnel that he was safe to remain in the community. He never presented with psychotic symptoms.

At the time of the Monroe County offense, he was not under a physician's care and had not been prescribed medication (contrary to his own assertion in which he states he was non-compliant with medication, a claim the court rejects as inaccurate and not credible). He was also drinking alcohol and using marijuana (although there was no credible testimony that he was under the influence of either at the time of the offense).

Once charged with the Monroe County offense, attorney Sonya Zoghlin, an assistant public defender with the Monroe County Public Defender's Office, was assigned to represent him. Ms. Zoghlin is well-known to the court, having tried before a jury several high-level felony cases and having represented many other defendants whose cases resulted in dismissals or favorable negotiated pleas. She is a graduate of Haverford College and New York University Law School and worked first for the New York Capital Defenders' Office before coming to Rochester to work for the Monroe County Public Defender. She has in her career here in Rochester represented hundreds of clients charged in serious felony matters and is highly regarded by the legal community. She now works for the federal Public Defender's office.

Ms. Zoghlin met with the defendant several times to discuss his case. She formulated a defense focused on one theory only: that the defendant was not the perpetrator, which was [*3]dictated by the defendant's statements to her that he was not the perpetrator. As noted above, he told her that he had been out all night, and that when he arrived back home, his girlfriend was covered in bruises and appeared to have been beaten. He then called 911 and recounted the same narration to police. Accordingly, Ms. Zoghlin did not explore with him the issue of his prior mental health history as it may have played a role in the offense, because he always maintained that he was not the perpetrator. In her words, she felt she "did not have the facts to support" a defense of "not guilty by reason of mental defect or illness," although she was well-versed and experienced in cases involving that defense as well as a defense based on intoxication at the time of the offense.

In meeting with and speaking to the defendant, she developed no concerns about the defendant's competency. Again, she did not pursue a psychiatric defense - i.e., not guilty by reason of mental illness — because there was no evidence to support it, in her opinion. She was fully aware of his history of mental health issues and that he was receiving Social Security disability payments.

Ms. Zoghlin negotiated a plea for her client that resulted in a 17-year sentence in DOCCS, to run concurrent with the sentence imposed by Ontario County Court.

At the time he entered the plea defendant was under the care of a physician at the Monroe County Jail, and was taking Seroquel, Ativan, and lithium.

He moved to set aside his Ontario County conviction (which was entered following his plea of guilty) pursuant to Criminal Procedure Law 440 in Ontario County on grounds similar if not identical to those brought in the motion before this court. The motion was denied without a hearing, and the Appellate Division, Fourth Department upheld the dismissal.

CONCLUSIONS OF LAW

On a motion pursuant to CPL § 440 to vacate a plea, defendant bears the burden of showing that 1) he was deprived of a fair plea proceeding by less than meaningful representation (see generally People v Flores, 84 NY2d 184, 187 [1994]; People v Manor, 27 NY3d 1012, 1014, 54 NE3d 1143 [2016]) or that his plea was not "knowing, voluntary and intelligent," (see CPL 440.30[6], [7]; People v Carty, 96 AD3d 1093, 1095 [3d Dept 2012]).

Here defendant has failed to sustain either burden.

Defense counsel reviewed the facts and circumstances of her client's case, and negotiated an extremely favorable plea, one that added less than two years onto a sentence of fifteen years in state prison that had been imposed by Ontario county court, especially when it is considered that he could have received up to 25 years consecutive to the Ontario County sentence. The failure to pursue a defense built around the defendant' s mental health issues did not constitute ineffective assistance, since there was no basis to do so. Defendant had not treated with mental health professionals for over a year. He gave a coherent and ultimately false alibi to investigators, one that he maintained in all his dealings with his attorney. No facts supported the defense he now faults counsel for not pursuing, thus counsel had a "strategic or other legitimate explanation" (People v. Rivera, 71 NY2d 705 [1988]) for not pursuing the defense.

Nor can it be said that defendant's plea of guilty was not entered "knowingly, voluntarily and intelligently" because he had not been made aware of the defense of not guilty by reason of mental defect. Such a defense, considering the facts, including defendant's statement to police following his call to 911, and the medical records, did not exist. It can hardly render a plea involuntary to not be apprised of a defense which has little or no reasonable basis in the available [*4]evidence.

Accordingly, the motion is DENIED.