Claim Soares reneged on plea deal rejected
ALBANY — If Devon Chan thought getting three illegal guns off the streets of the Capital Region would spare him time in prison, he thought wrong.
In 2019, the repeat felon from Troy pleaded guilty to third-degree drug possession in Albany County Court in exchange for a sentence of anywhere from six to 15 years in prison.
There was a caveat: If Chan made controlled gun purchases to help the FBI take illegal firearms off the streets, District Attorney David Soares’ office would potentially let Chan withdraw his guilty plea and admit to a misdemeanor. If Chan declined to take part in the controlled gun buys, prosecutors would recommend a seven-year prison sentence.
Chan took part in at least two gun buys, which took three guns off the streets. But when Chan appeared for sentencing by state Supreme Court Justice Peter Lynch, the prosecutors recommended a seven-year sentence. And Lynch agreed, imposing the prison time plus three years of post-release supervision. Chan appealed to the Appellate Division of state Supreme Court’s Third Department, arguing he was denied an “unfulfilled promise.”
In a 5-0 ruling Thursday, the Third Department upheld Chan’s guilty plea and Lynch’s sentencing. Chan, 32, who has previous convictions for attempted robbery and attempted drug possession, is serving his time in Greene Correctional Facility.
Chan was “not forthcoming when questioned by law enforcement” about the manner in which some guns were obtained or about the location of and “his involvement in hiding them,” stated Justice Eddie Mcshan, who authored the Third Department decision.
“The unequivocal terms of the plea agreement reflect that ‘no promises’ were made with regard to sentencing, and, although there was the potential of a joint motion to vacate the plea, defendant was advised that the ultimate sentence was dependent upon all the facts and circumstances at the time of sentencing,” Mcshan stated. “The value of the cooperation was discretionary and, given that the record reflects that the (prosecution) made a good-faith determination that defendant did not provide sufficient cooperation, no promises were breached by the (prosecution) so as to support defendant’s request for specific performance.”
On Jan. 17, Assistant District Attorney Jonathan Catania had told the justices that in addition to the three initial guns, Chan was supposed to get five other guns off the street, but they were later stolen without FBI approval. He said Chan was later evasive and failed a lie detector test when confronted by the FBI about the location of the guns, which were found in the apartment of Chan’s girlfriend.
Catania noted that Chan could have gotten more prison time than what he received for violating the agreement.
“He didn’t exactly live up to his end of the bargain on it,” Catania told the justices. “But to say he got no credit, I don’t think is (a) really fair assessment of how this case panned out, considering he had information on five guns being taken without their approval and tried to evade telling the FBI of the location of those five guns until he kind of painted himself into a corner where he was left with no choice but to sort of come clean. That was kind of just a wash at that point.”
Assistant Public Defender James Bartosik had told the Third Department that Chan provided 14 tips, information leading to multiple prosecutions and other guns. He argued that Lynch relied on an “unreasonable determination” for a reasonable sentencing by the district attorney’s office. He said Chan put himself in harm’s way and at the very least deserved a six-year term.
“I think the defendant did a lot of good work — and that work was actually described as valuable by the (prosecutors),” Bartosik said. He argued that Chan’s missteps did not outweigh his earlier cooperation.
Supporting the ruling were Presiding Justice Elizabeth Garry and Justices Christine Clark, Sharon Aarons and Molly Reynolds Fitzgerald.