In Young v Zonn ( __ 2011WL 1:04-cv-00363 [WDNY 02/18/11]), a habeas petition was granted based on failure of defense counsel in an Erie County prosecution to give adequate advice to his client as to whether he recommended that the client accept the plea offer. The court explained that

Under the performance prong of the Strickland v. Washington,466 U.S. 668 (1984), standard, trial counsel “must give the client the benefit of counsel’s professional advice on [the] crucial decision of whether to plead guilty.” Purdy v. United States, 208 F.3d 41, 44 (2d Cir.2000) (internal quotation marks omitted) (quoting Boria v. Keane, 99 F.3d 492, 497 [2d Cir. 1996]). “Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government.” Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003).

The court held that to the extent that the defense attorney failed to offer any recommendation about the pros and cons of accepting the plea, he was ineffective. The court further held that given the sentencing disparity between what he faced at trial (25 years and the plea offer (7 or 10 years) and the strength of the evidence against him, the fact that the defendant maintained his innocence does not mean he was not prejudiced by this failure to give advise on the desirability of the plea.

The Court ordered specific performance of the rejected plea offer, and since Young had already served 11 years the court ordered that the sentence be reduced to time time served and that the defendant be discharged. This order was not stayed pending appeal and the defendant was released the following day.