Albany Times Union

Claim Soares reneged on plea deal rejected

- By Robert Gavin rgavin@timesunion.com @Robertgavi­ntu

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.

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