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DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined there should be a hearing on whether defendant’s plea to attempted gang assault was involuntary. Defendant contended the plea was based on inaccurate advice from counsel. “Attempted gang assault” is a legal impossibility for trial purposes:

… [W]e agree with defendant that “attempted gang assault in the second degree is a legal impossibility for trial purposes. . . , as ‘there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended’ ” … . Based on that law and our review of the record, we further agree with defendant that the advice of defense counsel regarding the possibility of a conviction at trial of attempted gang assault in the second degree was erroneous.

Nevertheless, “[i]t is well settled that permission to withdraw a guilty plea rests largely within the court’s discretion” … . “Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ . . . That the defendant allegedly received inaccurate information regarding [the possibility of a conviction at trial and the resulting impact upon] his possible sentence exposure is another factor which must be considered by the court, but it is not, in and of itself, dispositive” … . “Where . . . the record raises a legitimate question as to the voluntariness of the plea, an evidentiary hearing is required” … . People v Davis, 2022 NY Slip Op 03610, Fourth Dept 6-3-22

Practice Point: “Attempted gang assault” is a legal impossibility at trial. Here defendant was entitled to a hearing on whether his plea to attempted gang assault was involuntary because of counsel’s inaccurate advice about the possibility of conviction at trial.

 

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