[972 N.Y.S.2d 419]
Assistant District Attorney Roni Piplani, Office of the Queens County District Attorney, Kew Gardens.
Melissa Sontag Broudo, Esq., Staff Attorney, New York, Attorney for the Defendant.
TOKO SERITA, J.
Defendant moves to vacate her plea of guilty to disorderly conduct (Penal Law [PL] § 240.20) under Docket number 2000QN056893 and the judgment of conviction and sentence rendered on November 14, 2000, and her plea of guilty to criminal possession of a weapon in the fourth degree (PL § 265.01) under Docket number 2003QN050066 and the judgment of conviction and sentence rendered on November 7, 2003, pursuant to Criminal Procedure Law (CPL) 440.10(1)(h) and (i).
The Parties' Contentions
Defendant asserts that her prior convictions are directly related to her arrests for prostitution offenses, and that because she is a victim of human trafficking, those convictions must be vacated and the cases dismissed. Defendant also argues that she was denied effective assistance of counsel when she pleaded guilty in each case.
The People do not contest the factual allegations presented by defendant. Rather, they argue that her second conviction for criminal possession of a weapon should not be vacated because it is not a prostitution-related charge, and as a matter of public policy, CPL 440 should not grant greater protection to human trafficking victims in weapons cases. They also assert that defendant failed to seek relief under CPL 440 with due diligence because she filed her motion three years after she ceased to fear her trafficker in 2008, and a year after CPL 440 was amended in 2010 to allow relief for human trafficking victims ( see CPL 440.10[i] ).
Defendant LG  was arraigned on November 14, 2000 under Docket number 2000QN056893 under an alias  and charged with prostitution (PL § 230.00). Defendant pleaded guilty on that date to disorderly conduct (PL § 240.20) and was sentenced to a conditional discharge.
Subsequently, on November 7, 2003 defendant was arraigned under Docket number 2003QN05006, again, under an alias and charged with loitering for the purpose of engaging in a prostitution offense (PL § 240.37 ), criminal possession of a weapon in the fourth degree (PL § 265.01 ) and disorderly conduct (PL [972 N.Y.S.2d 420]§ 240.20 ). On November 7, 2003 defendant pleaded guilty to criminal possession of a weapon in the fourth degree and was sentenced to three years of probation. Thereafter, on May 5, 2004, defendant was declared delinquent for violating the conditions of her probation. On November 28, 2006 defendant was convicted of violation of probation and sentenced to ten days' imprisonment.
I. Factual Background
The People do not contest defendant's factual averments. Accordingly, the court accepts as true the following facts set out in defendant's moving papers:
Defendant, " LG," was forced into prostitution when she was only 12 years old. She was born in 1986 in Brooklyn, New York, and lived with her grandmother until she was eight years old. While living with her grandmother, LG was sexually abused by an uncle, but she never received any medical attention even though ACS was involved and informed about the abuse. Following her grandmother's death, LG was placed into foster care and over the next few years, she was bounced around different foster homes until she was 12 years-old, when something happened that changed her life. There was a strip club across the street from where she lived with a foster family in Brownsville, Brooklyn. One day she was approached by a man in this thirties, " A."  He took her to a house where six other underage girls were living. Each of these girls had a bed in a different room, and " A," who was very nice to her at first, told her that if she stayed with him, she would not have to go back to her foster family. He kept her there and would not permit her to return to her foster home. He explained the rules of the " game"  to her, and although she didn't understand it at the time, " A" was preparing her to become a prostitute.
After several weeks, " A" sent her out to a " track"  on Pennsylvania Avenue in Brooklyn, accompanied by the other girls, who were there to make sure she did not get snatched by other pimps. Thereafter, he took her to that track repeatedly so that she could earn money for him through prostitution. LG was scared to leave " A" because he severely beat the other girls just for speaking with other men. He also beat them with hangers because he thought they were a bad influence on defendant. Later, at the encouragement of some girls she met on the track, defendant started working for another pimp, named " B," in Crown Heights, because she felt safer with him. Although he was also nice to her on the first day they were together, the next day he forced her to go out and make money for him through commercial sex. " B" also intimidated her with physical violence and was very strict with his girls, whom he forced to work daily from 7 p.m. to 8 a.m.
When LG was about thirteen years old, she started working for " C." She was required to give him the money she made in exchange for her own room. She did not [972 N.Y.S.2d 421] enjoy her life being prostituted: " [i]t wasn't like I wanted to be out there, but being in foster care, going from home to home, I felt like nobody cared about me. It made me feel so miserable."
After about six months, LG met another pimp called " D" who took her to Atlantic City, New Jersey. In 2000, " D" sent her by bus to Washington, D.C., and then to Miami, Florida. In Florida, defendant, who was 14 years old at the time, attempted to leave " the life"  by calling her brother's father who lived in Ft. Lauderdale. He came to get her, and she lived with him and her brother for about two weeks. A friend bought her a ticket back ...