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PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL, DETAILED EXPLANATION OFFERED.

The Second Department reversed defendant’s conviction solely on the basis of prosecutorial misconduct. The court offered a detailed explanation of the misconduct:

“[I]n summing up to the jury, [the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … .

Here, during that summation, the prosecutor directly attacked defense counsel’s role and his integrity. Specifically, the prosecutor raised a hypothetical that bore no relation to the evidence in the case and then suggested what defense counsel would have argued with respect to that irrelevant hypothetical, in effect, implying that the defense arguments were the product of expediency. This tactic invited the jury to reject defense counsel’s argument not on the merits, but merely because it was raised by defense counsel. We strongly disapprove of this attack on the legitimacy of defense counsel’s role … . The prosecutor also improperly referenced facts not in evidence in order to call for speculation by the jury … and misstated critical testimony provided by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed … .

The prosecutor improperly appealed to the jury’s sympathy and generalized fear of crime by asserting that the defendant possessed a loaded gun while families and children from the “20 residential buildings” were “everywhere” having “cookouts” and celebrating the Fourth of July, and that because the various police officers “did their jobs,” “fortunately, nothing happened.” These comments implied to the jury that the defendant intended to commit crimes with which he was not charged … . Furthermore, immediately upon praising the police officers who “did their jobs,” the prosecutor turned to the jury and advised that “[n]ow it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty. This type of “safe streets” argument is inflammatory and has repeatedly been disapproved by the courts … .

The prosecutor also compared the defendant’s in-court demeanor and appearance to how he appeared on the night of his arrest in order to argue that the jury should not be fooled into considering him a “gentleman” … . The prosecutor went so far as to point to the defendant’s precinct photo and stated that his appearance there represented his “true colors.” People v Brisco, 2016 NY Slip Op 08878, 2nd Dept 12-28-16

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)

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DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.

Although deemed harmless error, the Fourth Department determined defendant was denied his right to counsel when the court permitted him to decide whether to request a jury charge on a lesser included offense (despite defense counsel advice that he should not):

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ “… . On the other hand, defense counsel has ultimate decision making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense … . Here, the court “made plain that [it] would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary,” and thus the court “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . People v Henley, 2016 NY Slip Op 08729, 4th Dept 12-23-16

CRIMINAL LAW (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/LESSER INCLUDED OFFENSES (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/JURY INSTRUCTIONS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

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AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the resentencing of defendant to the same sentence which was overturned on appeal was not an error and failure to object to the resentence did not constitute ineffective assistance. Defendant was charged with attempted murder, assault and criminal possession of a weapon. Defendant and the victim were wrestling with a gun which discharged and wounded the victim. Defendant was convicted only of criminal possession of a weapon (no evidence of intent). The defendant was sentenced as a persistent violent felony offender to 20 years. During the first sentencing, the judge referred to the impact on the victim. Because defendant had not been convicted of shooting the victim, the appellate division reversed finding the sentence to be based upon evidence improperly considered. The judge imposed the same 20-year sentence upon resentencing. Defense counsel didn’t object:

In this case, the resentencing court provided on-the-record, permissible, and wholly nonvindictive reasons substantiating defendant’s sentence. Those reasons included defendant’s three prior felony convictions, a prior parole violation, and a probation report characterizing defendant as “a significant risk to the safety of the community.” The record therefore does not evince actual reliance on improper factors, or the type of retaliatory, vindictive conduct that a prophylactic presumption is designed to protect against. Because defendant’s resentencing claim fails on its merit, defense counsel cannot be deemed ineffective for declining to assert it. People v Flowers, 2016 NY Slip Op 08580, CtApp 12-22-16

CRIMIINAL LAW (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/SENTENCING AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE, DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defense counsel was not ineffective. Counsel, following defendant’s wishes. pursued a misidentification defense and did not pursue a justification defense. A video depicted actions which raised the possibility the shooting was justified as self-defense. However, defendant maintained he was not the shooter depicted in the video:

Here, we cannot say that defendant received less than meaningful representation … . Defendant concedes that he instructed counsel to pursue a misidentification defense, and he does not claim that counsel’s professional efforts in that regard were constitutionally deficient. Rather, defendant claims he was deprived of effective assistance when counsel failed to present a defense of justification. We disagree.

Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not “determinative of the verdict” … . We are not presented with a case in which defendant’s chosen defense theory was self destructive and ensured conviction. Nor did the path taken by counsel undermine his ability to deploy professional skill and expertise in presenting the chosen defense. For the same reasons, counsel was not ineffective for objecting to any charge that would have presented justification to the jury as a response to the jury’s request for further instructions. Thus, we cannot say that counsel’s representation was constitutionally deficient at the time because he vigorously pursued the defense defendant approved rather than the one defendant rejected outright. People v Clark, 2016 NY Slip Op 08485, CtApp 12-20-16

 

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)

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NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT.

The Court of Appeals determined there was insufficient evidence demonstrating defendant waived his right to be present at his resentencing:

A defendant has the right to be present at all material stages of trial … , including sentencing (see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” … . The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction … . Accordingly, defendant did not validly waive his right to be present. People v Stewart, 2016 NY Slip Op 08398, CtApp 12-15-16

CRIMINAL LAW (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/SENTENCING (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/WAIVER (CRIMINAL LAW, NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)

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EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT.

The First Department, reversing Supreme Court, determined plaintiff had adequately pled that the defendant law firm was equitably estopped from arguing an assignment, which was drawn up by the law firm, did not assign to plaintiff the right to bring a malpractice action against the law firm. The law firm had missed a deadline. Although the assignment could not be interpreted to include the malpractice claim, the equitable estoppel doctrine could be applied to prohibit the law firm from arguing the issue:

The motion court correctly found that the subject assignment, which merely transferred the assignor’s “entire right, title and interest in and to the [call] option contained in Paragraph 8 of” another contract, did not explicitly assign tort claims … . The assignment is not ambiguous; even if it were (and if we therefore considered parol evidence), an unexpressed understanding does not suffice … .

However, accepting plaintiff’s affidavit in opposition to defendants’ motion as true, we find that plaintiff sufficiently pleaded that defendants should be equitably estopped from arguing that the assignment did not assign tort claims. Contrary to defendants’ contention, estoppel can be based on silence as well as conduct … . Under these circumstances, where defendants drafted the assignment at a time when it represented … plaintiff, and that interpreting the assignment to exclude tort claims would mean that neither the assignor nor plaintiff, the assignee, would be able to sue defendants for malpractice for failing to exercise the call option in a timely manner, we find that the “special circumstances” exception to the privity requirement applies … . Deep Woods Holdings LLC v Pryor Cashman LLP, 2016 NY Slip Op 08156, 1st Dept 12-6-16

NEGLIGENCE (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/LEGAL MALPRACTICE EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/CONTRACT LAW (ASSIGNMENT, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/ASSIGNMENT (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/ATTORNEYS (MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/EQUITABLE ESTOPPEL (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/CIVIL PROCEDURE (EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)

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THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES.

The First Department determined defendant was not deprived of his right to call his codefendant as a witness. Although he strongly expressed his wish to do so, defense counsel properly exercised professional judgment in deciding against calling the witness:

“If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is for the attorney, not the accused, to make because it is not fundamental, the defendant is deprived of the expert judgment of counsel to which the Sixth Amendment entitles him or her” … . Whether to call a witness is a strategic decision to be made by defense counsel … . Moreover, counsel had a sound reason for not calling the codefendant, who, in his plea allocution, had implicated defendant in the drug sale. To the extent defendant is claiming ineffective assistance of counsel, that claim is likewise without merit … . People v Sheard, 2016 NY Slip Op 08186, 1st Dept 12-6-16

 

CRIMINAL LAW (THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES)/ATTORNEYS (CRIMINAL, THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES)

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL.

The First Department determined defendant was entitled to hearing on his motion to vacate the judgment of conviction. Defendant alleged he was erroneously told he would not be deported if he pled guilty to a drug sale, but could be deported if convicted after trial:

This case presents factual issues requiring a hearing into whether defendant was deprived of effective assistance of counsel under People v McDonald (1 NY3d 109 [2003]) by way of erroneous and prejudicial immigration advice. Defendant alleges that his attorney erroneously advised him that if he pleaded guilty to a drug sale count with a sentence of probation, he would not be subject to deportation, but if he refused the plea offer, proceeded to trial and lost, he would go to prison and then be deported. Defendant’s claim is corroborated, to some extent, by statements made to present counsel by the attorney who represented defendant at the time of the plea … . The standard “no other promises” disclaimer in defendant’s plea allocution does not, as a matter of law, defeat his claim of erroneous legal advice. This case warrants a hearing at which defendant may establish the advice he actually received regarding the deportation consequences of his plea. …

This case also warrants a hearing on the prejudice prong of defendant’s claim. Defendant made a sufficient showing to raise an issue of fact as to whether he could have rationally rejected the plea offer under all the circumstances of the case, including the serious consequences of deportation and his incentive to remain in the United States … . Further, defendant sufficiently alleges that if immigration consequences had been factored into the plea bargaining process, counsel might have been able to negotiate a different plea agreement that would not have resulted in automatic deportation. People v Santos, 2016 NY Slip Op 08169, 1st Dept 12-6-16

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/INEFFECTICE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)

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