Heidi Bota, New York City, for defendant.
Charles J. Hynes, District Attorney of Kings County, New York City (Solomon Neubort of counsel), for plaintiff.
Abraham G. Gerges, J.
Defendant moves to vacate the judgment on the ground that defendant's plea allocution did not establish his intent to murder the victim and that the Court failed to advise him that after completing his incarceration he would be required to serve a period of postrelease supervision. The defendant also moves to vacate the judgment on the ground that he received ineffective assistance of counsel when counsel failed to tell him that intent to kill was an element of attempted murder in the second degree, when counsel failed to advise him that he was subject to postrelease supervision and when counsel failed to negotiate a reduction of the amount of postrelease supervision time he will be required to serve.
In deciding this motion the Court has considered the motion papers,  the affirmation in opposition and the court file.
On December 9, 1998, an indictment was filed alleging that the defendant committed the crimes of attempted murder in the second degree, numerous counts of robbery in the first degree and theft related crimes, numerous counts of assault in the first degree and assault related charges, and several possession of a weapon charges. On January 1, 1999, the defendant was arraigned, given a copy of the indictment and pleaded not guilty.
On May 11, 1999, the defendant moved to withdraw his not guilty plea and enter a plea of guilty to attempted murder in the second degree, a class B violent felony. Prior to accepting the plea, the Court conducted an allocution. During the allocution, the defendant said that he was sitting in the front passenger seat of a taxi. At the conclusion of the ride, the defendant produced a gun, pointed the weapon at the taxi driver's head, and demanded property. The driver started to struggle with the defendant. A passenger in the rear then displayed a gun. The driver stopped grappling with the defendant and
began fighting with the rear passenger.D uring the struggle, the rear passenger's gun " went off," and the taxi driver was shot in the head.
At the plea allocution, the Court advised the defendant of his constitutional rights which he waived. The Court promised to sentence the defendant to a determinate term of imprisonment of 7 1/2 years. The Court did not inform the defendant that after release from incarceration the defendant would be required to serve five years of postrelease supervision. The defendant also waived his right to appeal. The Court then granted the motion ...