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Exclusion of Defense Counsel’s Colleague from a Wade Hearing Deprived Defendant of His Right to a Public Trial

The First Department, in a full-fledged opinion by Justice Richter, reversed a conviction finding the defendant was denied his right to a public trial. To protect the undercover officer and others, the defendant was excluded from the Wade hearing concerning the validity of the undercover officer’s identification of the defendant.  The trial court, in ordering partial closure of the courtroom, had allowed defense counsel, and colleagues of defense counsel, to be present during the hearing. During the hearing, defense counsel’s officemate was denied entry to the courtroom by the court officer stationed at the door, who had consulted with the sergeant inside the courtroom.  The First Department determined the exclusion of the defendant from the hearing was proper, but the exclusion of the attorney required reversal.  The court wrote:

Here, the undercover was the critical witness, and excluding defense counsel’s colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial … .  *  *  *

…[T]he exclusion of defense counsel’s colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored “is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions” …. Excluding defense counsel’s experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover’s testimony, and enabled the People to present the undercover’s testimony without the salutary effects of extra scrutiny.  People v Moise, 2013 NY Slip Op 05550, 1st Dept, 8-6-13

 

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Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution

The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution:

In People v Pepper (53 NY2d 213, cert denied sub nom. New York v Utter, 454 US 1162), the Court of Appeals addressed the issue of whether a new rule should be retroactively applied under the New York Constitution. It recognized three factors a court should weigh to determine whether to retroactively apply a new rule: (1) the purpose to be served by the new standard, (2) the extent to which law enforcement authorities relied upon the old standard, and (3) the effect a retroactive application of the new standard would have on the administration of justice (see id. at 220). The Court of Appeals explained that “the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself” (id.). Thus, a new rule that goes “to the heart of a reliable determination of guilt or innocence” will be retroactively applied “where otherwise there could be a complete miscarriage of justice” (id. at 221). However, a new rule which is “only collateral to or relatively far removed from the fact-finding process at trial” (id.), will have only prospective application. Although the Supreme Court in Padilla held that the Sixth Amendment requires criminal defense counsel to inform their clients whether a guilty plea carries a risk of deportation, this new rule, rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution … .

Retroactive application of Padilla is also not warranted under the second and third Pepper factors. With regard to law enforcement reliance, prior to Padilla, a defendant could prevail on an ineffective-assistance-of-counsel claim only if it was established that counsel rendered incorrect advice regarding the immigration consequences of the guilty plea and that the defendant was prejudiced thereby … . The failure to advise a defendant of the possibility of deportation did not constitute ineffective assistance of counsel …, and such failure to advise did not “affect the voluntariness of a plea of guilty or the validity of a conviction” (CPL 220.50[7]). Thus, under the old standard, prosecutors could recommend acceptance of plea allocutions even where the defendant had not been advised of the immigration consequences of entering into the plea …. As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard …, thus adversely affecting the criminal justice system. Accordingly, we further find that under New York law, the Padilla rule should not be retroactively applied to cases like this one where the convictions became final prior to March 31, 2010, the date Padilla was decided.  People v Andrews, 2013 NY Slip Op 05469, 2nd Dept 7-24-13

 

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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Supreme Court Case Relied Upon to Vacate Convictions by Guilty Plea Where Defendant Not Informed of Possibility of Deportation Can Not Be Applied Retroactively

The First Department, in a full-fledged opinion by Justice Tom, reversed the sentencing court’s vacation of defendant’s conviction (by guilty plea).  The sentencing court had reversed the conviction on the ground defendant had not been informed of the risk of deportation based on the plea.  The sentencing court’s ruling was based upon the US Supreme Court’s ruling in Padilla v Kentucky, 559 US 356 (2010), which the sentencing court determined should be applied retroactively.  The First Department explained that Padilla should not be applied retroactively, overruling First Department and 3rd Department precedent:

Padilla has been accorded retroactive application by this Court …and the 3rd Department…. However, since Padilla “marks a break from both Federal and State law precedents . . . and fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (People v Eastman, 85 NY2d 265, 275 [1995]).

The holding that Padilla announced new law, by which this Court is bound, dictates the conclusion that it has no retroactive application. As Eastman explains:  “Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’ or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial” (Eastman, 85 NY2d at 275, quoting Teague, 489 US at 311-312).

The rule announced in Padilla does neither, merely prescribing a duty imposed on counsel, and does not warrant retroactive application. Thus, defendant may not avail himself of the ruling… People v Verdejo, 2013 NY Slip Op 04913, 1st Dept 6-27-13

 

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Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

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Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

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Improper to Characterize Trial as “Search for Truth”

The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal).  People v Ward, 758, 4th Dept, 6-14-13

 

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Proper Procedures for Handling Pro Se Motions to Withdraw Guilty Pleas (Alleging Coercion by Defense Counsel) Explained

The Court of Appeals considered two cases in which, after pleading guilty, the defendant made a pro se motion to withdraw the plea, claiming coercion and undue pressure by defense counsel. In both cases the sentencing judge asked for the defense attorney’s position on the pro se motion, which forced both attorneys to take a position adverse to the client’s, which, in turn, required the assignment of new counsel.  The Court explained how the situation should be handled:

…[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel are challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea …, but may not take a position on the motion that is adverse to the defendant …. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion. People v  Mitchell …, Nos 116, 117, CtApp, 6-11-13

 

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Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13

 

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