The People, Respondent,v.Tyrone D. Manor, Appellant.BriefN.Y.March 31, 2016 To Be Argued By: Kimberly F. Duguay Time Requested: 10 Minutes APL-2015-00069 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- TYRONE D. MANOR, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: KIMBERLY F. DUGUAY Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4069 Fax: (585) 753-4234 Date Completed: May 13, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii, iii QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 3 Point I: The Record Demonstrates That Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered And That The Court Erred In Summarily Denying His Motion To Withdraw His Plea. 12 A. Introduction 12 B. The Trial Court Was Provided Information That Called Into Question Mr. Manor’s Decisional Capacity At The Time Of The Plea, And Information That Suggested That His Plea Was Further Affected By The Duress Of The Circumstances, Both Of Which Called Into Question Whether His Guilty Plea Was Knowingly, Intelligently And Voluntarily Entered, And It Was An Abuse Of Its Discretion For The Court To Summarily Deny His Motion Without Any Inquiry Whatsoever. 15 C. Statements Made During A Plea Colloquy Do Not Answer Legitimate Questions As To Whether Those Statements Were Voluntarily Made In The First Place, Especially Where The Court Is Provided With New Information That Calls Into Question The Defendant’s Decision-Making Capacity At The Time The Statements Were Made. 21 D. Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered As He Did Not Have An Adequate Opportunity To Discuss The Nature Of The Plea Offers And Their Respective Consequences With Counsel Or To Receive Legal Advice Before Pleading Guilty, And There Was Doubt As To His Guilt Of Intentional Murder. 27 1. Mr. Manor did not have a meaningful opportunity to either discuss the nature of the plea offers and their respective consequences with his attorneys, or to obtain their legal advice before pleading guilty to intentional murder. 27 2. Mr. Manor consistently denied any intent to cause the death of Ms. Curry, and his plea colloquy raised doubt as to his guilt of intentional murder. 32 E. Conclusion 35 Point II: Mr. Manor Was Denied His Right To Effective Assistance of Counsel As Defense Counsel Failed To Make Any Effort To Either Meet With Mr. Manor Privately Or To Request An Adjournment To Ensure That Mr. Manor Understood The Nature And Consequences Of The Respective Plea Offers Before Mr. Manor Pleaded Guilty To Intentional Murder, And But For Counsels’ Failure, There Was A Reasonable Probability That Mr. Manor Would Not Have Pleaded Guilty To Intentional Murder. 36 A. Introduction 36 B. Defense Counsels’ Representation Fell Well Below An Objective Standard Of Reasonableness As, Despite Personal Observations Of Coercion And Misinformation, And Concerns Regarding Mr. Manor’s Mental Status, Defense Counsel Neither Spoke To Mr. Manor Privately Nor Requested An Adjournment To Ensure That He Understood The Nature And The Consequences Of Pleading Guilty To Intentional Murder. 39 C. Defense Counsels’ Deficient Representation Undermined The Fairness Of The Proceedings As A Whole Because, But For Counsel’s Failure To Ensure That Mr. Manor’s Decision To Plead Guilty Was Not The Product Of Undue Pressure And Misinformation By Relatives, Or A Diminished Mental Capacity, There Is A Reasonable Possibility That He Would Not Have Pleaded Guilty To Intentional Murder. 43 CONCLUSION 45 i TABLE OF AUTHORITIES Federal Cases Boykin v Alabama, 395 US 238 [1969] ................................................................. 12 Brady v United States, 397 US 742 [1970] ................................................ 12, 27, 35 Hill v Lockhart, 474 US 52 [1985] .................................................................. 38, 43 Jones v Harris Assocs. L.P., 559 US 335 [2010] ................................................... 39 Lafler v Cooper, 132 S Ct 1376 [2012] ................................................................. 43 Missouri v Frye, 132 S Ct 1399 [2012] ................................................................. 37 North Carolina v Alford, 400 US 25 [1970] .................................................... 12, 32 Padilla v Kentucky, 559 US 356 [2010] ................................................................ 43 Strickland v Washington, 466 US 668 [1984] ................................................. 38, 39 State Cases People v Baldi, 54 NY2d 137 [1981] .............................................................. 38, 42 People v Beasley, 25 NY2d 483 [1969] ................................................................. 34 People v Benevento, 91 NY2d 708 [1998] ............................................................ 38 People v Brown, 14 NY3d 113 [2010] ........... 12, 13, 15, 17, 18, 19, 24, 27, 31, 35 People v Brown, 23 AD3d 702 [3d Dept 2005] ..................................................... 16 People v Brown, 59 AD3d 937 [4th Dept 2009] .................................................... 24 People v Fiumefreddo, 82 NY2d 536 [1993] ............................................ 12, 20, 31 People v Flowers, 30 NY2d 315 [1972] .............................................. 17, 18, 19, 35 ii People v Lopez, 71 NY2d 662 [1988] .............................................................. 26, 33 People v McDonald, 1 NY3d 109 [2003] .............................................................. 43 People v Mitchell, 21 NY3d 964 [2013] ................................................................ 15 People v Moissett, 76 NY2d 909 [1990] ................................................................ 12 People v Montgomery, 27 NY2d 601 [1970] ......................................................... 17 People v Mox, 20 NY3d 936 [2012] ................................................................ 13, 15 People v Nixon, 21 NY2d 338 [1967] ................... 13, 23, 27, 28, 30, 32, 33, 34, 35 People v Peque, 22 NY3d 168 [2013] ................................................................... 41 People v Richards, 17 AD3d 136 [1st Dept 2005] ................................................ 17 People v Session, 34 NY2d 254 [1974] ................................................................. 16 People v Tinsley, 35 NY2d 926 [1974] .................................................................. 15 People v Turner, 5 NY3d 476 [2005] .................................................................... 38 People v Van Deusen, 7 NY3d 744 [2006] ............................................................ 31 People v White, 32 NY2d 393 [1973] .................................................................... 17 People v Williams, 14 NY3d 198 [2010] ............................................................... 31 State Statutes Criminal Procedure Law § 220.60 ........................................................................... 9 Criminal Procedure Law § 460.20 ........................................................................... 2 Penal Law § 70.00 ........................................................................................ 4, 30, 40 Penal Law §70.02 .................................................................................................... 30 iii Penal Law §125.20 ................................................................................................. 30 Penal Law § 125.25 ................................................................................... 3, 4, 30, 40 Constitutions NY Const art I, § 6 ..................................................................................... 12, 35, 37 US Const Amend VI .................................................................................. 12, 35, 37 US Const Amends XIV .................................................................................... 12, 35 1 QUESTIONS PRESENTED 1. Did the trial court abuse its discretion when it denied Mr. Manor’s motion to withdraw his guilty plea without any inquiry given that both of Mr. Manor’s attorneys affirmed that his plea was unduly affected by duress and an impaired decisional capacity, and their beliefs were supported by the report by a psychiatrist who evaluated Mr. Manor after his plea? Answer below: No. 2. Did defense counsels’ failure to make any effort to meet with Mr. Manor privately or to request an adjournment to ensure both that Mr. Manor understood the nature and consequences of his plea and that it was not the product of duress, mental impairment or misinformation, deny Mr. Manor his right to effective assistance of counsel? Answer below: Not addressed by the court below. 2 PRELIMINARY STATEMENT Tyrone D. Manor appeals from an Order of the Appellate Division, entered October 3, 2014, affirming a judgment of conviction from the Monroe County Court, rendered on April 30, 2010. Mr. Manor was convicted, after a guilty plea on indictment number 0143 of 2009, of one count of intentional murder in the second degree. Mr. Manor was sentenced by the Honorable John J. Connell, Monroe County Court, to a term of eighteen years to life of incarceration. Mr. Manor is currently incarcerated and serving his prison sentence at Attica Correctional Facility. Rudolph J. LePore, Esq., and Heather V. Byrne, Esq., represented Mr. Manor during the proceedings below. A notice of appeal was timely filed, and the Appellate Division, Fourth Department, appointed the Monroe County Public Defender to represent Mr. Manor on appeal. The Appellate Division affirmed Mr. Manor’s conviction by memorandum and order entered October 3, 2014. The Honorable Eugene F. Pigott, Associate Judge of the Court of Appeals, granted leave to appeal the Appellate Division’s order on March 19, 2015. This Court has jurisdiction to decide the issues presented on this appeal, pursuant to CPL 460.20. The issues presented herein were preserved for review. 3 STATEMENT OF FACTS Tyrone Manor was charged with one count of intentional murder in the second degree in violation of Penal Law § 125.25 (1) for throwing a pair of the garden shears that hit Desiree Curry in the back and caused her death (R 9-10, 141). Mr. Manor did not deny that he caused Ms. Curry’s death, but he consistently denied that he intended to kill her (R 85-86, 99, 161, 163, 165). When questioned by police, Mr. Manor said in sum and substance that he was caught “messing around,” and when Ms. Curry threw a pair of garden shears and hit him in the leg, he “wasn’t thinking” when he threw them back at her, hitting her in the back (R 85-86). Mr. Manor was represented by Rudolph LePore, Esq., who in turn hired Heather Byrne, Esq., to “assess, prepare, and try the case” (R 163). At a court appearance on November 30, 2009, the attorneys noted that Mr. Manor “did not look well” and was “unusually reserved.” After waiving his right to a jury trial, Mr. Manor was provided with two alternative plea offers: 1) plead guilty to intentional murder in return for a promise that his sentence would be capped at twenty years to life; or 2) plead guilty to intentional manslaughter and waive the right to appeal in return for a sentence of twenty-five years of incarceration and five years of post-release supervision (R 96, 182). The maximum sentence Mr. 4 Manor could have received after trial was twenty-five years to life (Penal Law §§ 125.25, 70.00). Mr. Manor was to meet with his attorneys to discuss the plea offers and trial issues after the court appearance as a bench trial was scheduled to begin the following day. During the seven months the attorneys represented Mr. Manor, he had always appeared early for appointments and promptly returned their calls. But on this date, Mr. Manor never appeared for his scheduled meeting. Despite attempts to contact him every hour, Mr. Manor never responded to their calls. The attorneys became worried, and by 10:00 P.M., eight hours after their scheduled meeting, Mr. LePore drove to Mr. Manor’s home where again there was no response (R 160, 164.) On December 1, 2010, the following day, Mr. Manor’s appearance was disturbing. He was even more ashen than the day before and his eyes were “huge and dark” (R 164). In fact, Ms. Byrne stated that at first she did not even recognize him (R 164). Mr. Manor was “agitated and strangely uncommunicative,” which was peculiar as well (R 160). Mr. LePore met with Mr. Manor in a jury room to discuss the plea offers. Mr. Manor was joined by about five relatives, which was strange because Mr. Manor had previously been “adamant” that no information be shared with family members. (R 160-161, 164-165.) Moreover, neither Mr. Manor’s wife nor his children were present (R 164-165). 5 Ms. Byrne felt that neither plea offer was worth serious consideration and decided to review Rosario material while Mr. LePore went to a jury room with Mr. Manor and the extended family members (R 160, 164-165). When Mr. LePore tried to discuss the plea offers, the family became “highly aggressive” and demanded that Mr. Manor take a plea, insisting incorrectly that “he could get out in seven [years]” (R 160-161, 164-165). Mr. Manor, who was “pacing back and forth,” “highly agitated,” uncommunicative, and “even paler than before,” never met with his attorneys privately (R 160, 165). In fact, there was no indication that Mr. Manor’s attorneys ever spoke to him directly about the plea offers at all (R 159-166). Ms. Byrne entered the jury room after reviewing the Rosario material and was struck by the atmosphere. Relatives were “yelling” at Mr. Manor that he had to take a plea while a flushed Mr. LePore was trying to calm them down (R 165). When Ms. Byrne said that the Rosario supported the defense theory of the case and she thought they should “just do the trial,” the relatives turned their aggression on her, yelling and demanding guarantees with unobtainable sentencing consequences (R 160-165). At this point, Mr. Manor locked himself in the bathroom and Ms. Byrne went to the courtroom (A 160, 165). When Mr. Manor finally came out of the bathroom, the relatives resumed their yelling, insisting “you have to do this, you have to do this” (R 160-161). Mr. 6 LePore was “surprised” when Mr. Manor agreed to a plea (R 161). Mr. Manor was immediately led to the courtroom without further discussion to plead guilty to intentional murder despite that he had consistently maintained his innocence of that charge, and both defense attorneys believed that there were “many compelling and triable issues” that included “substantial issues of intent and self-defense.” (R 161- 164). Ms. Byrne said that she was “shocked and appalled” when Mr. Manor “emerged to take the plea” (R165). Both attorneys noticed Mr. Manor had difficulty with the plea colloquy, noting that he was “stammering” and that he “seemed robotic, uncommunicative and weird” (R 161, 165). Nevertheless, the attorneys did not discuss their concerns about what had happened until after Mr. Manor pleaded guilty and was taken into custody (R 161, 165-166). After being informed that he was giving up his right to a trial, Mr. Manor was questioned by the court as follows: Court Have you had enough time to talk to your attorney about all of this? Mr. Manor Yes. Court Has anyone threatened or forced you to get you to plead guilty? Mr. Manor No. Court Have you taken any medication or alcohol today that would affect your ability to decide to plead guilty? 8 Mr. Manor I intended. Court Pardon me? Mr. Manor I intended. Court You intended to cause her death? Mr. Manor Yes. Court Is that the truth? Mr. Manor Yes. Court How do you plead to Murder in the Second Degree? Mr. Manor Guilty. (R 98-100). A few days later, the attorneys visited Mr. Manor at the Monroe County Jail where they found that he was lucid and his physical appearance had returned to normal (R 161, 165-166). However, he was “highly confused about the plea and its consequences,” and appeared to believe that they were still going to trial (R 161-162, 165-166). Concerned about Mr. Manor’s mental status, defense counsel retained a licensed psychiatrist, Dr. Robert Weismann, to evaluate him. Defense counsel informed Dr. Weisman of their personal observations and the events surrounding the plea. Dr. Weisman agreed to conduct a psychiatric evaluation of Mr. Manor, which occurred at the Monroe County Jail on January 22, 2010 (R 161, 166, 177-180). Dr. Weisman determined that Mr. Manor’s decisional capacity at 9 the time of the plea was affected by “extraordinary pressure from family members” (R 177). Dr. Weisman also learned during his evaluation that in an effort to cope with anxiety, Mr. Manor had “ingested ¾ pint of cognac and two ‘blunts (Marijuana)’ by himself about one hour before arriving to his trial,” which likely further impaired his decisional capacity at the time of the plea (R 178). Dr. Weisman concluded “with a reasonable degree of psychiatric certainty that Mr. Tyrone Manor did not knowingly or intelligently appreciate the consequences” of his guilty plea (R 180). This opinion was shared by both of Mr. Manor’s attorneys (R 162, 166). On February 23, 2010, two months before the sentencing, defense counsel filed a motion pursuant to CPL 220.60 to permit Mr. Manor to withdraw his guilty plea, and in the alternative for a hearing, because at the time of the plea “Mr. Manor was operating under extreme duress and diminished capacity and did not appreciate or understand the consequences of the plea” (R 162). The motion was supported by Dr. Weisman’s report and detailed affirmations from both defense attorneys describing both their observations on the morning of the plea and resulting beliefs that Mr. Manor’s guilty plea was not knowingly and voluntarily entered (R 150-167, 177-180). The prosecutor opposed Mr. Manor’s motion to withdraw his plea, primarily relying on Mr. Manor’s plea colloquy, which denied 10 that any threat, force, alcohol or medication caused him to plead guilty (R 181- 187). At sentencing, neither party provided any additional argument to supplement their motions (R 112). The court asked Mr. Manor no questions before summarily denying his motion to withdraw his guilty plea (R 112). The court simply stated “I really don’t see an issue for a factual hearing and I’m satisfied that the plea that was entered was a knowing, voluntary and intelligent waiver of his rights to a trial on the day of trial. So I’ll deny the application to withdraw the plea” (R 112). The court then sentenced Mr. Manor to eighteen years to life of incarceration (R 116- 117). Mr. Manor filed a timely notice of appeal. Mr. Manor’s direct appeal claimed that his plea was not knowingly, intelligently and voluntarily entered, and the lower court erred in denying his motion to withdraw his plea without conducting any inquiry. Mr. Manor further claimed that he was deprived of his right to meaningful assistance of counsel as his attorneys observed both Mr. Manor’s impaired mental and physical condition, and the coercive environment during the plea discussions, but failed to make any effort to meet with Mr. Manor privately or to request an adjournment before leading him to the courtroom to plead guilty to intentional murder. 11 The Appellate Division, Fourth Department determined that the lower court did not abuse its discretion in denying Mr. Manor’s motion to withdraw his plea without any inquiry or hearing as: 1) the allegations in his motion were “belied” by the statements Mr. Manor made during his plea colloquy; 2) Mr. Manor had been afforded a reasonable opportunity to present his contentions in support of his motion to the court; and 3) Mr. Manor’s statements that negated the element of intent during his plea colloquy were sufficiently cured by his later statements that “removed any doubt regarding that intent.” The court further determined that Mr. Manor was not denied his right to effective assistance of counsel as, like his motion to withdraw his plea, his claim that he was denied a meaningful opportunity to discuss the plea offers with his attorneys was “belied” by his plea colloquy (R 5-6). 12 Point I: The Record Demonstrates That Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered And That The Court Erred In Summarily Denying His Motion To Withdraw His Plea. A. Introduction A guilty plea is valid only if it is a knowing, intelligent and voluntary waiver of the defendant’s federal and state constitutional rights (Boykin v Alabama, 395 US 238, 242 [1969]; People v Moissett, 76 NY2d 909, 910-911 [1990]; US Const Amends VI, XIV; NY Const, art 1 § 6). Moreover, a guilty plea is “voluntary only if it represents an informed choice freely made by defendant among other valid alternatives,” and a determination as to the validity of a plea must be made by considering all of the relevant surrounding circumstances (People v Brown, 14 NY3d 113 [2010]; see also Brady v United States, 397 US 742, 749 [1970]; North Carolina v Alford, 400 US 25, 31 [1970]). The issue in this case is whether Mr. Manor’s motion to withdraw his guilty plea presented information that called into question whether his plea was knowingly, intelligently and voluntarily entered. If so, the court had a duty to ensure the integrity of the guilty plea. In some circumstances this may be achieved by a limited inquiry (see People v Fiumefreddo, 82 NY2d 536 [1993]). But where that “initial inquiry exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his plea and at the very least conduct a hearing” (People v 13 Nixon, 21 NY2d 338, 355 [1967]; see also People v Brown, 14 NY3d 113, 116 [2010]). Where a legitimate question is raised as to the voluntariness of a plea, “and the trial court takes no or inadequate measures to resolve it and ensure that the defendant's plea is knowing and voluntary,” vacatur is warranted (People v Mox, 20 NY3d 936, 939, n * [2012]). Such was the case here, as Mr. Manor presented sufficient facts in his motion to withdraw his guilty plea to call into question whether his plea was a knowing, intelligent and voluntary choice. Defense counsel filed a motion to permit Mr. Manor to withdraw his guilty plea, contending that the plea was not knowingly and voluntarily entered because at the time of the plea, “Mr. Manor was operating under extreme duress and diminished capacity and did not appreciate or understand the consequences of the plea” (R 162). The motion was supported by written affirmations from both defense attorneys informing the court that they believed Mr. Manor’s decisional capacity was significantly impaired at the time of the guilty plea, and provided specific factual information to support their professional opinions. The attorneys further substantiated their beliefs that Mr. Manor’s plea was neither knowingly nor voluntarily made with a report from a licensed psychiatrist who evaluated Mr. Manor and agreed that Mr. Manor did not “knowingly or intelligently appreciate the consequences of accepting the plea of guilty” because his decision-making capacity was impaired at the time (R 180). The information provided by the 14 attorneys was not contested. Rather, the prosecutor argued that there was nothing “in the record” to suggest that Mr. Manor’s plea was involuntary, and that Mr. Manor’s claim was “belied” by statements he made during his plea colloquy (R 183-186). The court asked Mr. Manor no questions and conducted no inquiry whatsoever before denying the motion to withdraw his guilty plea, finding that Mr. Manor knowingly, intelligently and voluntarily waived his “rights to a trial” (R 112). Notably, the court made no reference as to whether Mr. Manor knowingly, voluntarily and intelligently pleaded guilty to intentional murder. The Fourth Department agreed with the prosecution that “no further inquiry was necessary” because Mr. Manor’s claim that his plea was not knowingly, intelligently and voluntarily entered was “belied by the record of the plea proceeding” (R 5-6). For the reasons set forth below, it was error for the lower court to disregard new information that called defendant’s decisional capacity at the time of the plea into question, without any inquiry, and rely entirely on the plea colloquy itself in determining whether the Mr. Manor’s plea was knowingly, intelligently and voluntarily entered. Consequently, this Court is urged to vacate Mr. Manor’s guilty plea based upon the uncontested facts set forth in his motion to withdraw his plea, or in the alternative, to remit the matter to the Monroe County Court to conduct a hearing to determine whether Mr. Manor’s plea was knowingly, 15 intelligently and voluntarily entered (see People v Tinsley, 35 NY2d 926 [1974]; People v Brown, 14 NY3d 113 [2010]). B. The Trial Court Was Provided Information That Called Into Question Mr. Manor’s Decisional Capacity At The Time Of The Plea, And Information That Suggested That His Plea Was Further Affected By The Duress Of The Circumstances, Both Of Which Called Into Question Whether His Guilty Plea Was Knowingly, Intelligently And Voluntarily Entered, And It Was An Abuse Of Its Discretion For The Court To Summarily Deny His Motion Without Any Inquiry Whatsoever. When a defendant moves to withdraw his guilty plea, the trial judge has broad discretion to decide the nature and extent of any fact-finding inquiry (People v Tinsley, 35 NY2d 926, 927 [1974]). A court may deny a motion to withdraw a plea without making any inquiry where the motion “is patently insufficient on its face” (People v Mitchell, 21 NY3d 964, 967 [2013]), or where “a careful scrutiny of the motion to withdraw reveals that defendant's allegations fail to raise a legitimate question as to the voluntariness of the plea” (People v Brown, 14 NY3d 113, 118 [2010]). But where doubt is raised as to the voluntariness of a plea, the court must take adequate measures to resolve it (People v Mox, 20 NY3d 936 [2012]; see also People v Brown, 14 NY3d 113, 116 [2010]). Where the trial court takes no or inadequate measures to resolve any doubt and ensure that the defendant's plea is knowing and voluntary, vacatur is warranted (People v Mox, 20 NY3d 936, 939, n * [2012].) 16 It is not contested that in some cases a defendant’s own “conclusory and vague allegations that his mental capacity was impaired” may be insufficient to warrant a hearing or an inquiry (see e.g. People v Brown, 23 AD3d 702, 702 [3d Dept 2005]; see also People v Session, 34 NY2d 254, 256 [1974].) But Mr. Manor provided specific and detailed information to the court that called into question both his mental and physical condition at the time of the plea, and indicated that his decision to plead guilty was unduly influenced by duress. This information was provided in written affirmations by two attorneys who described their personal observations of Mr. Manor’s aberrant behavior, disturbing physical appearance and aggressive interference by family members during his only opportunity to speak to his attorneys regarding the plea offers before pleading guilty to intentional murder. The attorneys used this information to support their opinions that Mr. Manor’s mental and decision-making capacity was impaired at the time of his guilty plea, and that his plea was not knowingly and voluntarily entered (R 158-166). The attorneys provided further information as to Mr. Manor’s diminished decision-making capacity at the time of the plea by submitting a report by a licensed psychiatrist who evaluated Mr. Manor and concluded “with a reasonable degree of psychiatric certainty that Mr. Tyrone Manor did not knowingly or intelligently appreciate the consequences of accepting the plea of guilty to . . . one count of Murder 2nd Degree” (R 180). Therefore, Mr. Manor’s motion to withdraw 17 his plea provided sufficient independent information to raise doubt as to his mental condition at the time of the plea, and his ability to make a knowing, voluntary, and intelligent choice to plead guilty to intentional murder. Undue pressure invalidates a guilty plea (People v Montgomery, 27 NY2d 601 [1970]), and comes in a variety of forms (see People v Brown, 14 NY3d 113, 116 [2010] [county court abused its discretion in failing to conduct a hearing to explore defendant’s allegations that a promised furlough to visit his ill son affected the voluntariness of his plea]; People v Flowers, 30 NY2d 315 [plea was involuntary where there was some support to believe that defendant pled guilty to obtain a transfer from the local jail where he had been abused and his life threatened]; People v Richards, 17 AD3d 136 [1st Dept 2005] [plea was involuntary given undue coercion by the court threatening defendant with a greater sentence if convicted after trial]). Ultimately, the issue is whether, after considering the element of coerciveness that is inherent in all guilty pleas, the defendant’s plea was arrived at as a result of “undue pressure” (People v White, 32 NY2d 393 [1973]). The type of undue pressure that can render a guilty plea involuntary may arise from “the duress of the circumstances,” and need not be from physical intimidation or explicit threats (People v Flowers, 30 NY2d 315, 317 [1972]; see also People v Brown, 14 NY3d 113 [2010]). Nor is it necessary that there be “a 18 high probability that the guilty plea was tainted,” as a guilty plea many not stand even if it was only partly motivated by duress (People v Flowers, 30 NY2d 315, 319 [1972]). Where there was “palpable evidence that the guilty plea lacks the integrity and stability acceptable in a civilized criminal system,” the plea must be vacated (People v Flowers, 30 NY2d 315, 319 [1972]). In this case, the circumstances creating duress were: 1) the undue pressure created by relatives who were yelling at Mr. Manor, demanding that he take a plea, and insisting that he would receive an illegally low sentence if he pleaded guilty; 2) Mr. Manor’s impaired physical and mental condition, which made him more vulnerable to the relatives’ coercive behavior, and 3) defense counsels’ failure to speak with Mr. Manor privately to ensure that his decision to accept a plea was not the product of either undue influence or a misunderstanding as to the nature or consequences of pleading guilty to intentional murder. In some cases, the issue turns on the defendant’s credibility alone and a defendant’s uncorroborated claim of involuntariness may be defeated where it is supported solely by “a convicted defendant’s say-so” (People v Flowers, 30 NY2d 315, 317 [1972]). But where there is undisputed corroborating information that demonstrates that “to some extent” a defendant's guilty plea was influenced by duress, this Court has found that “it is not tolerable that the plea should stand” (People v Flowers, 30 NY2d 315, 317 [1972]). For example, in People v Flowers, 19 the defendant moved to withdraw his guilty plea claiming that he was being abused while in jail and that his plea was motivated by his desire to be relocated to another facility (id at 317). After a hearing, the trial court determined that the defendant was not believable. But this Court determined that the issue did not turn on defendant’s credibility alone. Rather, the undisputed testimony from defendant’s attorney and jail records entered at a hearing were sufficient to demonstrate that “to some extent defendant’s guilty plea was occasioned by duress.” Therefore, the plea was tainted as a matter of law, and the defendant’s motion to withdraw his guilty plea was granted (id at 317, 319). In People v Brown, defendant also claimed that his plea was made “under conditions of duress,” as he was motivated by his desire to obtain a furlough to see his sick son (14 NY3d 113 [2010]). Again, defendant’s motion to withdraw his plea was not based solely on his statement, and therefore the issue did not turn on his credibility alone. Rather, the trial court was personally aware of defendant’s concern for his son given that the furlough was a condition of the plea (id at 116). Since the record raised a legitimate factual question as to the voluntariness of the plea, and the court failed to conduct an inquiry to explore defendant’s allegations in order to make an informed determination, the matter was remitted to the trial court to conduct a hearing (id at 116-117). 20 In contrast, in People v Fiumefreddo, defendant’s pro se motion to withdraw her guilty plea was denied because her claim that her plea was coerced by her desire to obtain a more favorable plea for her father was uncorroborated, and the issue turned on defendant’s credibility. The defendant’s claim was never brought up over the course of “several months” of plea negotiations or during an extensive plea colloquy (82 NY2d 536 [1993]). Although “it would have been better if the [trial] court had inquired further as to the basis for defendant’s withdrawal motion,” the trial court gave defendant a full opportunity to retract her admissions to the crime charged and to elaborate on her reasons for moving to withdraw her plea. Therefore, the trial court’s inquiry was sufficient for the court to make an informed credibility determination and to deny the motion without a formal hearing (id at 546, 548). Mr. Manor’s claim that his plea was not knowing or voluntary was substantiated by two attorneys’ affirmations and psychiatrist’s report, all of which stated that Mr. Manor’s decision-making capacity at the time of the plea was significantly impaired and that his plea unduly influenced by the duress imposed by family members. This information cast serious doubt as to whether Mr. Manor’s plea was knowingly, intelligently and voluntarily entered, and his motion to withdraw his plea should have been granted. 21 At a minimum, the trial court had an affirmative duty to conduct some inquiry with Mr. Manor to determine whether the facts alleged in his motion influenced his decision to plead guilty. But the court asked Mr. Manor no questions before summarily denying his motion to withdraw his plea. Given that the trial court failed to ask even a single question of Mr. Manor so it could make an informed decision as to what, if any, impact either Mr. Manor’s mental condition or the coercive environment at the time of the plea had on his decision to plead guilty, the trial court abused its discretion by summarily denying Mr. Manor’s motion to withdraw his guilty plea. C. Statements Made During A Plea Colloquy Do Not Answer Legitimate Questions As To Whether Those Statements Were Voluntarily Made In The First Place, Especially Where The Court Is Provided With New Information That Calls Into Question The Defendant’s Decision- Making Capacity At The Time The Statements Were Made. The Appellate Division determined that that Mr. Manor’s claim that his plea was coerced by family members was “belied” by the record of the plea proceeding itself and that no further inquiry was necessary (R 5-6). But the claims raised in Mr. Manor’s motion were supported by the attorneys’ affirmations and a psychiatric evaluation that called into question Mr. Manor’s decision-making capacity at the time of the plea. These cast doubt as to the reliability of Mr. Manor’s responses during the plea colloquy. But it was exactly those responses that the trial court singularly relied upon in denying the motion. 22 The Appellate Division’s decision effectively permits a lower court to disregard new information that calls into question the voluntariness of a plea by relying entirely on what was said during the plea colloquy itself in determining voluntariness - - even where the new information is in conflict with the information elicited at the time of the plea. If the plea court is free to disregard sworn information presented in a written motion to withdraw a guilty plea - - information which if believed raises a significant question as to the validity of the plea - - a potentially insurmountable burden is placed on a defendant to prove that his plea was the product of misinformation, duress or some other impairment. A colloquy that is truly coerced presumably would not have been made but for the coercion. Therefore, the colloquy itself cannot be proof of the absence of coercion. It is the reliability of the information supporting the claim of coercion that is determinative. Indeed, to rely solely on the statements made during a coerced colloquy to determine the absence of coercion creates an inescapable circular argument. Here, the trial court was provided with a report from a psychiatrist that concluded that at the time of the plea Mr. Manor was “operating under extreme duress and diminished capacity” at the time of the guilty plea (R 177, 180). The Appellate Division found that no inquiry was needed because the claim that the plea was made under duress and a diminished mental capacity was belied by the 23 statements Mr. Manor made during the plea colloquy itself. But the statements made during the plea colloquy alone did not provide the court sufficient information to make an informed analysis as to whether those statements were truly voluntarily or whether they were unduly affected by duress and a diminished mental capacity. Nor did Mr. Manor’s reply of “no” when asked if anyone had threatened or forced him to plead guilty shed any meaningful light on the coercive circumstances that had occurred only moments earlier, albeit off the record. Where information is provided to the court that undermines the integrity and reliability of what was said during a plea colloquy, the court has a duty to conduct some inquiry to ensure that the plea was knowingly, voluntarily and intelligently entered, and may not rely solely upon the very potentially compromised statements at issue to determine their voluntariness. In fact, this Court has stated that “It is . . . quite clear that where the initial inquiry exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his plea and at the very least conduct a hearing” (People v Nixon, 21 NY2d 338, 354-355 [1967] [emphasis added]). For instance, in People v Brown, the defendant was granted a furlough to visit his sick son as part of his plea agreement and stated during his plea colloquy that, other than the promised furlough, no other threats or promises were made (14 24 NY3d 113 [2010]). The defendant later moved to withdraw his guilty plea, claiming that his plea was not voluntary as it had been entered “as a result of emotional and mental distress caused by his fear of his son’s death” (id at 116). Like here, the Appellate Division found that “defendant's allegations of duress and coercion are belied by the statements of defendant during the plea colloquy” (Brown at 116, citing People v Brown, 59 AD3d 937, 937 [4th Dept 2009] [emphasis added]). But this Court noted that a plea colloquy alone does not necessarily “inform the analysis of whether the plea was voluntary” (id at 117). Instead, a determination as to whether a plea is voluntarily, knowingly and intelligently made must be based on a totality of the circumstances. Where those circumstances raise a genuine factual issue, a further inquiry must be conducted to make an informed determination as to voluntariness of the plea (id). Here, the court was provided with additional information contained in a motion to withdraw the guilty plea that cast serious doubt on the voluntariness of Mr. Manor’s plea. But the court did not ask Mr. Manor a single question to inform the analysis as to whether Mr. Manor’s guilty plea was knowingly, intelligently and voluntarily entered before denying his motion. Some relevant questions that should have been asked of Mr. Manor before denying his motion were: ● What was Mr. Manor’s mental condition at the time he pleaded guilty, and what, if any, impact did it have on his ability to understand the nature of the plea or its consequences? 25 ● What was the nature of the coercion, and what, if any, impact did it have on his decision to plead guilty? ● What was the nature of Mr. Manor’s relationship with the relatives, and what, if any, impact did that have on his decision to plead guilty? ● What exactly did he consume before meeting with his attorneys and what, if any, impact did it have on his decision to plead guilty? ● Did he have an accurate understanding of the nature of the alternative plea offers and their respective sentencing consequences at the time of the plea? ● Did the sentencing misinformation provided by family members affect his decision to plead guilty to intentional murder? ● Did he still maintain his innocence to intentional murder? ● Why did he lock himself in the bathroom? Was it to find a quiet place to think about the respective plea offers? Or was it because he was too overwhelmed and anxious to understand and meaningfully participate in the plea discussions? 26 The Appellate Division’s decision impermissibly and unjustly diminishes a lower court’s responsibility to ensure that only knowing, intelligent and voluntary guilty pleas are accepted. It permits a court to rely solely on statements made during a routine plea colloquy and to ignore new independent information that calls into question the voluntariness of those very statements. But other than the “rare case” discussed in People v Lopez (71 NY2d 662 [1988]), where a defendant’s recitation of the facts itself casts doubt upon his guilt, most cases that call into question the voluntariness of a plea will necessarily involve new information that is inconsistent with what was said during the plea colloquy, especially those cases where a defendant’s mental condition at the time of the plea is called into question or where the plea is entered under duress. If courts are permitted to ignore new information simply because it was inconsistent with what was said during the plea colloquy, the danger that an unknowing and involuntary plea will be unjustly accepted is significantly increased. 27 D. Mr. Manor’s Guilty Plea Was Not Knowingly, Intelligently And Voluntarily Entered As He Did Not Have An Adequate Opportunity To Discuss The Nature Of The Plea Offers And Their Respective Consequences With Counsel Or To Receive Legal Advice Before Pleading Guilty, And There Was Doubt As To His Guilt Of Intentional Murder. Where a defendant moves to withdraw his plea, the propriety of the trial court’s response should be evaluated in consideration of the totality of the circumstances (People v Brown, 14 NY3d 113, 117 [2010]; see also Brady v United States, 397 US 742, 749 [1970] [The voluntariness of a plea must be determined “by considering all of the relevant circumstances surrounding it”]). Here, in addition to the duress and impaired decision-making capacity set forth above, additional factors that were important in determining whether Mr. Manor’s plea was knowingly, intelligently and voluntarily were: 1) Mr. Manor had an inadequate opportunity to discuss the nature of the plea offers and their respective consequences with counsel and to receive legal advice as to the same; and 2) there was doubt as to Mr. Manor’s guilt of intentional murder (People v Nixon, 21 NY2d 338, 354 [1967]). 1. Mr. Manor did not have a meaningful opportunity to either discuss the nature of the plea offers and their respective consequences with his attorneys, or to obtain their legal advice before pleading guilty to intentional murder. “The competency of counsel and the degree of actual participation by counsel, as well as his opportunity for and the fact of consultation with the 28 pleading defendant are particularly important" in determining whether a plea was knowingly, intelligently and voluntarily entered (People v Nixon, 21 NY2d 338, 354 [1967]). For the reasons more fully set forth in Point II of this brief, Mr. Manor’s legal representation was deficient as his attorneys admitted that, despite their concerns regarding Mr. Manor’s mental condition, and the aggressive and coercive conduct by relatives who were providing misinformation, they made no effort to speak to Mr. Manor privately or to seek an adjournment to ensure that he was making an informed and voluntary choice to plead guilty to a crime that he had consistently denied. The attorneys’ affirmations make clear that their sole meeting with Mr. Manor to discuss the plea offers was, at best, not meaningful, and at worse, unduly coercive and misinformed. First, both attorneys described Mr. Manor’s troubling physical appearance and aberrant behavior. Mr. LePore described Mr. Manor as “behaving peculiarly,” “highly agitated” and “strangely uncommunicative” (R 160). Ms. Byrne stated that she was concerned that Mr. Manor “might be ill as he did not look well” (R 164). On the day of the plea, he was “ashen” with “huge and dark” eyes that “looked black” (R 164-165). She described Mr. Manor as “extremely agitated,” and “robotic, uncommunicative and weird” (R 165). Based upon Mr. Manor’s unusual appearance and behavior, both attorneys were concerned about Mr. Manor’s mental and physical well-being. But neither 29 attorney discussed their concerns with either Mr. Manor or each other until after Mr. Manor pleaded guilty (R 161,165). Once they discussed their concerns with Mr. Manor, the attorneys concluded that Mr. Manor’s plea was influenced by his diminished decisional capacity and duress of the circumstances (R 162, 166). But a meaningful consultation with counsel would have necessarily involved addressing these issues with Mr. Manor before he pleaded guilty to ensure that neither his mental condition nor the demands of family members were adversely influencing his ability to make an informed and voluntary choice. Second, the sole meeting to discuss the plea offers was described as chaotic, aggressive, and dominated by yelling and misinformation, including the insistence that Mr. Manor could be released in seven years if he accepted a plea, which was a legal impossibility under either plea offer. Ms. Byrne said that family members “kept giving incorrect information about the sentence” (R 165). She said that she “tried to clarify that it was not a determinate sentence that was promised, that the back end was life [but that] they kept saying that it was fifteen years and he could get out in seven,” at which time “Mr. Manor ran into the bathroom and would not come out” (R 165). A deputy knocked at the door, and Ms. Byrne went to the courtroom (R 165). When Mr. Manor “finally emerged,” Mr. LePore said that the family members “kept yelling you have to do this, you have to do this” and Mr. Manor “to [his] surprise, agreed and the plea ensued” (R 160-161). 30 There is no indication whatsoever that either attorney clarified the difference between a determinate twenty-five-year sentence and an indeterminate sentence of between fifteen and twenty years to life in state prison, let alone that neither sentence could result in his release in seven years (Penal Law §§ 70.00, 70.02, 125.25, 125.20). Although the court briefly stated the terms of the alternative plea offers during the plea proceedings, it was in no position to assess the strength of Mr. Manor’s case or to express a legal opinion as to whether he should consider either plea offer. Moreover, given that the court had no information as to what had occurred moments earlier, it did not dispel the misinformation that Mr. Manor could be released after seven years of incarceration. Indeed, this Court has recognized that “if independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar conscious Judge be the one to perform the function in displacement of the lawyer ” (People v Nixon, 21 NY2d 338, 354 [1967]). Further, the attorneys affirmed that, in their opinion, Mr. Manor had a strong legal defense. Mr. LePore stated that “there were many compelling and triable issues” (R 162). And Ms. Byrne, who was the attorney responsible for representing Mr. Manor at trial, said that “there were substantial issues of intent and self-defense” and that in her opinion neither plea offer was “worth serious consideration” (R 163-164). But Mr. Manor never spoke to Ms. Byrne during the 31 meeting. Nor did Ms. Byrne ever see him speak to Mr. LePore (R 165). Indeed, there was no indication that Mr. Manor ever personally engaged in discussions with counsel during the meeting. Although Mr. Manor stated during his plea colloquy that he had enough time to speak to his attorneys, this statement was uninformed. Given that Mr. Manor was not provided the information he needed to make an educated choice, he could not be expected to appreciate the need for further discussion with his lawyers. This Court has consistently recognized the importance of a meaningful discussion with defense counsel before accepting a plea in determining whether a plea is knowingly, intelligently and voluntarily entered (see e.g. People v Fiumefreddo, 82 NY2d 536, 546 [1993] [defendant’s plea had been negotiated over the course of several months before it was accepted and the defendant had a sufficient opportunity to weigh the relative merits of the plea against the risks of a trial]; compare People v Brown, 14 NY3d 113, 117 [2010] [“Unlike Fiumefreddo, there is no indication on the record that the specific terms of this plea were subject to extended discussion or that defendant had sufficient time to consider the alternatives to taking it”]). A defendant must “possess all the information necessary for an informed choice among different possible courses of action” for a plea to be voluntary (People v Williams, 14 NY3d 198, 207 [2010]; see also People v Van Deusen, 7 32 NY3d 744 [2006]; North Carolina v Alford, 400 US 25, 31 [1970]). Mr. Manor’s single consultation with his attorneys was a far cry from a meaningful opportunity to discuss the respective plea offers and to obtain competent legal advice before pleading guilty to intentional murder, the only count in the indictment. 2. Mr. Manor consistently denied any intent to cause the death of Ms. Curry, and his plea colloquy raised doubt as to his guilt of intentional murder. If doubt is cast upon a defendant’s guilt, he “must be permitted to withdraw his plea and shall not be permitted to plead guilty under such circumstances until the court ascertains that the defendant is aware of what he is doing” (People v Nixon, 21 NY2d 338, 344 [1967]). Mr. Manor never denied that he caused Ms. Curry’s death. But he consistently denied any intent to kill her. He claimed that he “was not thinking” when he threw the garden shears, and that her death was accidental (R 85-86). In fact, Mr. Manor’s attorneys described themselves as “shocked” and “surprised” when he agreed to plead guilty as, during the seven months that they had been representing him, he had consistently maintained that he was innocent of intentional murder (R 161, 163, 165). During Mr. Manor’s plea colloquy, he described the events as he always had - - in essence, Ms. Curry threw the garden shears at him during an argument, and he was not thinking when he threw them back at her (R 85-86, 99, 163). Mr. Manor then explicitly denied that he intended to kill Ms. Curry. It was only after 33 the court informed Mr. Manor that he had to admit to having the intent to cause death before the court would accept his plea that he awkwardly stated “I intended” (R 99-100). Mr. Manor promptly moved to withdraw his guilty plea in part because the plea colloquy was inconsistent with the crime of intentional murder and raised a possible justification defense (R 161). Mr. Manor’s colloquy alone called into question the voluntariness of his guilty plea as he explicitly denied that he intended to kill Ms. Curry (see generally People v Lopez, 71 NY2d 662, 666 [1988]). The court’s limited inquiry informing Mr. Manor that he needed to say that he intended to kill Ms. Curry for the court to accept his guilty plea did little to ensure that he truly understood the nature of the crime he was pleading to - - rather, it simply made his admission a means to an end. This Court has recognized that defendants are often prepared to give “categorical answers” to the questions asked during a plea colloquy “because they know that this is the route to eligibility for the lesser plea” (People v Nixon, 21 NY2d 338, 355 [1967]). But it cautioned that any ritualistic form in plea taking that saves “the trouble of thinking is likely to eliminate thinking” (id). “While the essence of justice may be procedure, there can be a point at which the administration of justice becomes only procedure and the essence of justice is lost” (id at 356). In other words, courts may not place form over substance when the 34 integrity of a guilty plea is called into question, even if the plea colloquy may have been sufficient had no new information ever been produced (see generally People v Beasley, 25 NY2d 483 [1969]). But that is what happened here. Mr. Manor’s plea colloquy alone raised doubt as to his guilt of intentional murder. When this information was supplemented by the information contained in the motion to withdraw his guilty plea, serious doubt was raised as to his guilt and the voluntariness of his plea. Consequently, the trial court should have been “quick to offer the defendant an opportunity to withdraw his plea and at the very least conduct a hearing” (People v Nixon, 21 NY2d 338, 355 [1967]; see also People v Beasley, 25 NY2d 483 [1969]). Yet the court below asked no questions of Mr. Manor whatsoever before concluding that it did not “see an issue for a factual hearing” and that it was “satisfied that the plea that was entered was a knowing, voluntary and intelligent waiver of his rights to a trial” (R 112). The court never found that Mr. Manor’s plea to intentional murder was knowingly, voluntarily and intelligently entered. This Court has determined that “[i]t is not tolerable for the State to punish its members over protestations of innocence if there be doubt as to their guilt, or if they be unaware of their rights, or if they have not had opportunity to make a voluntary and rational decision with proper advice in pleading guilty” (People v Nixon, 21 NY2d 338, 354 [1967].) Yet all of those conditions were present in this 35 case. Consequently, Mr. Manor’s plea was not knowingly, intelligently and voluntarily entered, and his motion to withdraw his plea should have been granted (People v Nixon, 21 NY2d 338, 344 [1967]). In the alternative, the court should have granted Mr. Manor’s request for a hearing. E. Conclusion The uncontested factual information contained in Mr. Manor’s motion to withdraw his plea was sufficient alone to establish that Mr. Manor’s plea was not a knowing and voluntary choice. Therefore, Mr. Manor’s guilty plea was tainted as a matter of law, and the order of the Appellate Division should be reversed and the motion to withdraw the plea of guilty granted (see People v Flowers, 30 NY2d 315, 319 [1972]; People v Nixon, 21 NY2d 338 [1967]; Brady v United States, 397 US 742, 749 [1970]; US Const Amends VI, XIV; NY Const, art 1 § 6). In the alternative, absent any inquiry, the court did not have the requisite information it needed to make an informed determination as to whether Mr. Manor’s plea was knowingly, intelligently and voluntarily entered. Consequently, it was an abuse of discretion for the trial court to deny Mr. Manor’s motion to withdraw his guilty plea absent any inquiry to determine what impact any undue pressure or mental impairment had on Mr. Manor’s decision to plead guilty to intentional murder, and the matter should be remitted to the trial court to conduct a hearing (People v Brown, 14 NY3d 113 [2010]). 36 Point II: Mr. Manor Was Denied His Right To Effective Assistance of Counsel As Defense Counsel Failed To Make Any Effort To Either Meet With Mr. Manor Privately Or To Request An Adjournment To Ensure That Mr. Manor Understood The Nature And Consequences Of The Respective Plea Offers Before Mr. Manor Pleaded Guilty To Intentional Murder, And But For Counsels’ Failure, There Was A Reasonable Probability That Mr. Manor Would Not Have Pleaded Guilty To Intentional Murder. A. Introduction Mr. Manor’s attorneys described his aberrant and deteriorating physical and mental condition at the time of the guilty plea, and were concerned about his mental status. The attorneys believed that Mr. Manor’s guilty plea was coerced as they witnessed the aggressive demands by family members who insisted that Mr. Manor plead guilty based on misinformation that he would be released in seven years if he did so. Yet neither attorney made any effort to speak to Mr. Manor privately to ensure that he understood the nature and the consequences of pleading guilty to intentional murder, and that his plea was a voluntary choice. This was especially troubling given that: Mr. Manor consistently denied any intent to kill; both attorneys believed in the strength of his case; and the sole meeting to discuss the plea offers occurred shortly before the guilty plea (R 159-166). Despite that both attorneys had significant concerns regarding duress and Mr. Manor’s mental capacity, they never discussed their concerns with either Mr. Manor or each other until after Mr. Manor pleaded guilty to intentional murder (R 161, 165). Although the attorneys eventually informed the trial court that Mr. 37 Manor did not understand the consequences of pleading guilty and that “the pressure from the family members . . . completely overrode his own free will,” the damage was done (R 158, 165-166). Mr. Manor’s motion to withdraw his plea was denied, and he was sentenced to eighteen years to life in state prison for a crime that, but for the brief period his mental state was in serious question, he consistently and adamantly denied. The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const Amend VI; NY Const, art I, § 6). It is well-settled that the right to effective assistance of counsel applies at all critical stages of the criminal proceedings, which includes the plea-bargaining process (Missouri v Frye, __ US __, 132 S Ct 1399, 1406 [2012]). The Supreme Court has recognized that “[i]n today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” (id at 1407). Indeed, the Court has gone so far as to state that in most cases plea bargaining is “not just some adjunct to the criminal justice system; it is the criminal justice system” (id). In order for the benefits of the plea bargaining process to be realized, “criminal defendants require effective counsel during plea negotiations. Anything less might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him” (id at 1407- 1408 [internal citations and quotations omitted]). 38 The federal and the state standards for evaluating ineffectiveness are similar in that both require that counsel’s representation fall below an objective standard of reasonableness (Strickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1981]). However, the standards differ as to the second prong of the analysis, which requires a showing of prejudice. The federal standard is focused more on the outcome of the proceeding. Specifically, “the defendant must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different” (Hill v Lockhart, 474 US 52 [1985]; see also Strickland v Washington, 466 US 668 [1984]). Whereas the New York standard has “departed from the second (‘but for’) prong of Strickland, adopting a rule somewhat more favorable to defendants” (People v Turner, 5 NY3d 476, 480 [2005]). In New York, generally “the issue is whether counsel's performance ‘viewed in totality’ amounts to ‘meaningful representation’” (People v Turner, 5 NY3d 476, 479-80 [2005] citing People v Baldi, 54 NY2d at 147]). “While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness 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 Benevento, 91 NY2d 708, 713-14 [1998]). Mr. Manor was denied his right to effective assistance of counsel under both the federal and the state standards. First, defense counsel made no effort to meet 39 with Mr. Manor privately to ensure that he understood the nature and the consequences of pleading guilty to intentional murder despite that he had consistently denied committing that offense, and counsel was concerned about his mental status and the possibility that the plea was a product of duress and misinformation. Second, counsels’ complete lack of intervention before Mr. Manor pleaded guilty to intentional murder to ensure that his decision was an informed and voluntary choice, undermined the fairness of the proceedings as a whole, and but for defense counsels’ deficient performance, there is a reasonable probability that Mr. Manor would not have pleaded guilty to intentional murder. B. Defense Counsels’ Representation Fell Well Below An Objective Standard Of Reasonableness As, Despite Personal Observations Of Coercion And Misinformation, And Concerns Regarding Mr. Manor’s Mental Status, Defense Counsel Neither Spoke To Mr. Manor Privately Nor Requested An Adjournment To Ensure That He Understood The Nature And The Consequences Of Pleading Guilty To Intentional Murder. Under the seminal case Strickland v Washington, the first prong of the analysis - - constitutional deficiency - - “is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms” (Padilla v Kentucky, 559 US 356, 366 [2010] citing Strickland v Washington, 466 US 668, 688 [1984] [internal citations and quotations omitted]). 40 In this case, the attorneys personally witnessed Mr. Manor’s aberrant behavior and physical appearance, and expressed their belief that he was operating with a diminished decisional capacity at the time of the plea (R 160-162, 164-166). Moreover, despite believing that there were “many compelling and triable issues,” the attorneys did nothing to ensure that Mr. Manor understood the risks of going to trial versus pleading guilty to the only count in the indictment, which carried a mandatory life sentence (R 9-10, 162) (Penal Law §§ 125.25 [1], 70.00 [2] [a]). Nor was the trial attorney’s belief that neither plea offer was worth considering ever explained to Mr. Manor (R 164). Neither attorney spoke to Mr. Manor privately before he was led to the courtroom to plead guilty to intentional murder. The attorneys stood silently as Mr. Manor struggled with a plea colloquy during which he initially denied any intent to kill, and repeated his claim that Ms. Curry threw a pair of garden shears that hit him in the leg, and he was “not thinking” when he picked them up and threw them back (R 99-100, 162-163, 165). The attorneys’ affirmations also make clear that the sole meeting to discuss the plea offers was dominated by Mr. Manor’s relatives (R 164-165). The attorneys witnessed their client being yelled at and coerced into accepting a plea to a crime that he consistently denied. Moreover, Mr. Manor was being told to take a plea based upon information the attorneys knew to be false, specifically that if he pleaded guilty he could be released in seven years (R 165). When the relatives 41 yelled at the trial attorney for trying to clarify the misinformation, she did not try to meet with Mr. Manor privately. Rather, she left Mr. Manor with the screaming relatives and went to the courtroom (R 165). Mr. Manor ran in the bathroom, apparently to escape from the hostility and chaos. As soon as Mr. Manor came out of the bathroom, the family members resumed their yelling, insisting “you have to do this you have to do this” (R 160- 161). As soon as Mr. Manor succumbed and agreed, Mr. LePore simply led him to the courtroom to plead guilty (R 161). There was no further attempt to correct the sentencing misinformation before Mr. Manor pleaded guilty. Even though Mr. LePore described himself as “surprised” and Ms. Byrne said she was “shocked and appalled” by Mr. Manor’s decision, neither attorney made any effort to speak to Mr. Manor apart from the coercive and chaotic environment to confirm that his decision to plead guilty to intentional murder was in fact a voluntary and informed choice (R 161, 165). Not surprisingly, when the attorneys met with Mr. Manor a few days after the plea, he still did “not fully grasp the sentence and did not seem to understand what had occurred” (R 161). “The right to effective counsel guarantees the defendant a zealous advocate to safeguard the defendant's interests, give the defendant essential advice specific to his or her personal circumstances and enable the defendant to make an intelligent choice between a plea and trial” (People v Peque, 22 NY3d 168 [2013]). 42 Although “[w]hat constitutes effective assistance is not and cannot be fixed with yardstick precision” and “varies according to the unique circumstances of each representation” (People v Baldi, 54 NY2d 137, 146 [1981]), by any measure, Mr. Manor was denied effective assistance of counsel as, despite each attorney’s personal observations and concerns, neither attorney did anything before Mr. Manor pleaded guilty to ensure that he was mentally capable of understanding the nature and the consequences of his guilty plea or to ensure that his plea was not unduly influenced by the relatives’ aggressive and misinformed demands. Given that neither attorney made any effort to ensure that Mr. Manor’s decision to plead guilty was not the product of the coercion, mental impairment or misinformation that they witnessed at the time of the plea, defense counsels' representation fell below an objective standard of reasonableness. 43 C. Defense Counsels’ Deficient Representation Undermined The Fairness Of The Proceedings As A Whole Because, But For Counsel’s Failure To Ensure That Mr. Manor’s Decision To Plead Guilty Was Not The Product Of Undue Pressure And Misinformation By Relatives, Or A Diminished Mental Capacity, There Is A Reasonable Possibility That He Would Not Have Pleaded Guilty To Intentional Murder. In general, where a defendant seeks to vacate his guilty plea because of ineffective assistance of counsel, the prejudice prong focuses on whether there was a reasonable possibility that the outcome of the plea process would have been different with competent representation (People v McDonald, 1 NY3d 109 [2003], overruled on other grounds by Padilla v Kentucky, 559 US 356, 360 [2010]; see also Lafler v Cooper, __ US __, 132 S Ct 1376, 1380 [2012]; Hill v Lockhart, 474 US 52 [1985]). The crux of Mr. Manor’s motion to vacate his plea was that “but for” the duress imposed by family members and his diminished decisional capacity at the time, he would not have pleaded guilty to intentional murder. Defense counsel affirmed that Mr. Manor consistently maintained his innocence of intentional murder and counsel believed he had a compelling defense (R 159-166). But given his impaired decisional capacity at the time, the “pressure from the family members . . . completely overrode [Mr. Manor’s] own free will” (R 166). When defense counsel spoke to Mr. Manor privately a few days after the plea, his physical appearance and mental status had significantly improved. However, he “did not seem to understand what had occurred,” was “highly 44 confused” about the plea and its consequences, and believed that he was still going to trial (R 161, 165-166). After having a meaningful opportunity to meet with his attorneys, Mr. Manor moved to withdraw his guilty plea. Mr. Manor did not discuss his case during his presentence interview, explaining that he had “plans to ‘take back his plea’ so that he can take the matter to trial” (PSI 3). But if counsel had taken reasonable steps to ensure that Mr. Manor’s decision to plead guilty was voluntary choice and not the product of the duress, misinformation or impaired decisional capacity before Mr. Manor pleaded guilty, there is a reasonable probability that Mr. Manor would not have pleaded guilty to intentional murder in the first place. Consequently, Mr. Manor was prejudiced by his attorneys’ failure to afford him meaningful representation and his plea should be vacated.