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Defense Counsel’s Statement Defendant “Most Likely” Would Not Be Deported Based on a Guilty Plea Did Not Amount to Ineffective Assistance

The Third Department determined that defense counsel’s statement that the defendant “most likely” would not be deported based on his guilty plea to a misdemeanor did not constitute ineffective assistance. Defendant had subsequently been detained by immigration officials for deportation:

…[D]efendant was required to establish both ‘that counsel’s performance was deficient’ and ‘that the deficient performance prejudiced the defense'” … .  Here, the record indeed makes clear that defendant was concerned about the possibility of being deported.  The record does not, however, establish that defendant was given erroneous advice regarding the potential immigration consequences associated with his guilty plea. People v Obeya, 105313, 3rd Dept 10-31-13

 

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Ineffective Assistance On Suppression Issues—Case Sent Back

The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing.  The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:

In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police.  At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.

And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant.  Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this prosecution.  People v Clermont, 166, CtApp 10-22-13

 

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Failure to Move to Dismiss Indictment on Speedy Trial Grounds Constituted Ineffective Assistance of Counsel—Inexcusable Post-Indictment Delay Required Dismissal

The Third Department determined defense counsel’s failure to move to dismiss the indictment on speedy trial grounds constituted ineffective assistance of counsel, requiring that defendant’s motion to withdraw his guilty plea be granted, and the postindictment delay, for which the People had no adequate excuse, required that the indictment be dismissed:

A Washington County grand jury handed up a four-count sealed indictment in October 2011 charging defendant with criminal sale and possession of controlled substances occurring in September and November 2010.  An arrest warrant was issued and provided to the State Police, who for well over six months were reportedly unable to locate defendant, who had relocated, until he was arrested during a traffic stop in Chautauqua County, where he had been residing.  He was arraigned on the indictment on June 14, 2012. * * *

…[D]efendant’s ineffectiveness of counsel claim was preserved by his motion to withdraw his plea and adequately alleges that it impacted the voluntariness of his plea and appeal waiver, so as to survive both … .  Thus, we address defendant’s speedy trial claim in the context of ascertaining whether he was deprived of meaningful representation, mindful that “[a] single error of failing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amount to ineffective assistance of counsel” … . * * *

The People’s fleeting description of the efforts made to locate defendant fell far short of “all reasonable efforts to enforce judicially issued warrants” … required to satisfy the “due diligence” standard (CPL 30.30 [4] [c] [i]).  As such, the People failed to meet their burden of establishing the statutory exclusion for this postindictment prereadiness delay … . Accordingly, all of this unready time would be chargeable to the People … . People v Devino, 105441, 3rd Dept 10-17-13

 

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Failure to Exercise Peremptory Challenge Not Ineffective Assistance

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the failure to exercise a peremptory challenge against a juror (Peters) who was a long-time friend of the prosecuting attorney did not amount to ineffective assistance of counsel:

…[D]efendant can prevail on his ineffective assistance claim only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right (see People v Turner, 5 NY3d 476, 478 [2005]).  We held in Turner that this had occurred where a lawyer overlooked “a defense as clear-cut and completely dispositive as a statute of limitations” (id. at 481).  The mistake that defendant accuses defense counsel of making here was not of that magnitude.

It could be argued that counsel’s decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution’s favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge.  We consider those arguments separately.

The first argument is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view.  * * *

The second argument — that counsel erred by failing to preserve the issue of the for-cause challenge for appeal — gives us somewhat more pause.  The trial court’s decision to deny the challenge for cause may have been error … .  Counsel’s choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause “does not constitute reversible error unless the defendant . . . peremptorily challenges such prospective juror.” Considering the poor odds of acquittal that defendant was facing, it is hard to see how keeping a particular juror — no matter how strong defense counsel’s hunch that he would be favorable -could justify the loss of a significant appellate argument.

We conclude, however, that counsel’s mistake, if it was one, was not the sort of “egregious and prejudicial” error that amounts to a deprivation of the constitutional right to counsel… . People v Thompson, 144, CtApp 10-10-13

 

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Failure to Make Motion for Trial Order of Dismissal Not Ineffective Assistance

In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:

…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13

 

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Ineffective Assistance of Counsel Mandated New Trial—Difference Between Federal and State Ineffectiveness Criteria Explained

In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:

A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered “somewhat more favorable to defendants,” focusing on “the fairness of the process as a whole rather than its particular impact on the outcome of the case” …. “[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation” …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a “but for” test …, under the state standard, “a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation” …. “To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel’s errors” … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel’s performance at trial … .

Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied “meaningful representation” by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13

 

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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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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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