In People v. Thomson, 46 AD3d 939, 847 N.Y.S.2d 682 [3d Dept. 2007], defendant claimed he was prejudiced by counsel's failure to ascertain that a prior New Jersey conviction did not constitute a predicate felony.

The Appellate Division, Third Department, held that counsel's failure to verify defendant's criminal history prior to plea negotiations constituted inadequate legal assistance (cf. People v. Mosby, 78 AD3d 1371, 911 N.Y.S.2d 493 [3d Dept. 2010] ["even if we were to find that counsel erred in failing to challenge the predicate felony offender statement, that error, in our view, did not rise to the level of ineffective assistance of counsel under the circumstances of this case]).

However, the court held that defendant had to also establish that the People would have offered a more favorable plea deal and that if such a deal were offered defendant would have pleaded guilty.

The Third Department was unpersuaded that a change in defendant's status would have led to a more favorable plea offer, "especially considering the serious nature of the charges here" (People v. Thomson, 46 AD3d at 941).