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Attorney’s Telling the Court There Was No Reason Sentencing Should Not Go Forward in the Face of Defendant’s Pro Se Motion to Withdraw His Guilty Plea Adversely Affected Defendant’s Right to Counsel

The Second Department ordered that a hearing be held on defendant’s motion to withdraw his guilty plea and that another lawyer be assigned. When defendant made his pro se motion to withdraw his plea, his attorney told the court there was no reason sentencing should not go forward. The attorney’s taking a position adverse to the defendant’s adversely affected the defendant’s right to counsel:

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The County Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion to withdraw his plea of guilty … . Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearing on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. People v King, 2015 NY Slip Op 05209, 2nd Dept 6-17-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Court Should Not Have Deferred, Over Defense Counsel’s Objection, to Defendant’s Request that the Jury Not Be Charged on a Lesser Included Offense—To Do So Denies Defendant His Right to the Expert Judgment of Counsel

The Fourth Department determined the court erred in deferring to the defendant’s request that the jury not be charged to consider a lesser included offense.  Defense counsel strongly objected to the defendant’s request and so informed the court.  The decision concerning whether to request a “lesser included” jury instruction is solely the province of defense counsel:

In Colville (20 NY3d at 23), the Court of Appeals held that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, “contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected” (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, “[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him” (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14

 

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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

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Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed.  After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test.  However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant.  The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:

In People v Gursey (22 NY2d 224 [1968])… we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'” … . Violation of this right to legal consultation generally requires suppression of the scientific evidence …. Because time is of the essence in obtaining accurate chemical test evidence …, we further observed in Gursey that a suspect's communication with a lawyer regarding “the exercise of legal rights should not [] extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” … .

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” … . In other words, conferring with counsel is permissible only if “'such access does not interfere unduly'” with timely administration of the test … . * * *

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of alcohol test … . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194 [2] [b], 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf … . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, CtApp 5-6-14

 

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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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Defendant’s Indelible Right to Counsel Did Not Attach When the Attorney for Defendant’s Husband’s Estate Communicated with the Police—The Attorney Was Unaware that Defendant Was a Suspect In Her Husband’s Death at the Time of the Communication

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant’s husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate’s attorney and was not aware defendant was a suspect in her husband’s death:

The evidence established that defendant was the personal representative of the estate …, and that the attorney’s representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent’s death, which he believed to have been a suicide; that he identified himself as the attorney for decedent’s estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although “an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference” … . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

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The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make—Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant’s Objection—The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury’s note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant’s wishes:

…[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal … . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration …, whether to seek or consent to a mistrial … , or whether to introduce certain evidence at trial …, generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” … . Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him …, and “did not implicate a matter of trial strategy or tactics” … . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

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The Prosecutor’s Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor’s Repeated Questioning of the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

The Second Department reversed defendant’s murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense’s expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant’s expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct … unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree … . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

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Decision Whether to Submit a Lesser Included Offense to the Jury Is for the Attorney, Not the Defendant, to Make—Failure to Grant the Attorney’s Request (Because the Defendant Objected) Reversible Error

The Second Department reversed defendant’s conviction because Supreme Court followed the defendant’s, rather than the defendant’s attorney’s, wishes re: the submission of a lesser included offense (here petit larceny) to the jury. The defendant did not want the lesser included offense submitted to the jury, but his attorney did. The Second Department explained that the decision whether to request a jury charge on a lesser included offense is a strategic one made by the attorney, not the defendant:

…[T]he decision whether to seek a jury charge on a lesser-included offense is a matter of strategy and tactics which is “for the attorney, not the accused to make” … .

Contrary to the People’s contention, the failure to submit the lesser-included offense to the jury constituted reversible error under the circumstances of this case. To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]…). The crime of petit larceny is a lesser-included offense of robbery in the first degree … . People v Lowery, 2015 NY Slip Op 03385, 2nd Dept 4-22-15

 

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