The People, Respondent,v.Herman Bank, Appellant.BriefN.Y.Sep 15, 2016To be Argued by: ROBERT N. ISSEKS (Time Requested: 15 Minutes) APL-2015-00175 Monroe County Indictment No. 0590/07 Appellate Division–Fourth Department Docket No. KA 14-00079 Court of Appeals of the State of New York PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, – against – HERMAN BANK, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ROBERT N. ISSEKS, ESQ. Attorney for Defendant-Appellant Six North Street Middletown, New York 10940 Tel.: (845) 344-4322 Fax: (845) 341-1760 Date Completed: October 16, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ................................................................................ 1 ARGUMENT ............................................................................................................. 1 Point 1 This appeal presents a pure question of law .................................................... 1 Point 2 Mask v. McGinnis has not been abrogated ....................................................... 4 Point 3 The Appellate Division misapplied the “reasonable probability” standard ..... 6 Point 4 The trial court improperly limited Reilly’s testimony...................................... 8 Point 5 Bank does not seek to “reap a windfall” ........................................................ 10 CONCLUSION ........................................................................................................ 11 i TABLE OF AUTHORITIES CASES Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) ........................................................... 5, 6 Hill v. Lockhart, 474 U.S. 52 (1985) .......................................................................... 9 Hines v. Ricci, 2014 WL 314430 (D.N.J. 2014) ........................................................ 5 Lafler v. Cooper, 132 S. Ct. 1376 (2012) ............................................................. 4, 11 Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000) .................................................... 4, 5 Missouri v. Frye, 132 S. Ct. 1399 (2012) ............................................................... 4, 5 Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001) ........................................................... 5 People v. Bank, 124 A.D.3d 1376 (4th Dept. 2015) ...................................... 2, 3, 6, 8 People v. Bigelow, 66 N.Y.2d 417 (1985) ................................................................. 2 People v. McRay, 51 N.Y.2d 594 (1980) ................................................................... 1 People v. Thomson, 46 A.D.3d 939............................................................................ 6 Ross v. Superintendent, 2013 WL 2128808 (E.D.N.Y. 2013) ................................... 8 Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 4, 5, 6, 9 Young v. Kaplan, 2015 WL 5706972 (E.D.N.Y. Sept. 28, 2015) .......................... 5, 7 ii. 1 PRELIMINARY STATEMENT This brief is submitted on behalf defendant-appellant, Herman Bank (“Bank” or “Defendant”) in reply to the Brief for Respondent submitted by the District Attorney of Monroe County. ARGUMENT Point 1 This appeal presents a pure question of law “[W]here the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts,” this Court, “absent an error of law,” will not disturb the findings of the courts below. People v. McRay, 51 N.Y.2d 594, 601 (1980) On the other hand, when an issue arises as to the proper standard by which a determination is to be made – in this case the standard by which a court is to determine whether a defendant has demonstrated prejudice – “a question of law is presented for review[.]” Id. The District Attorney misreads the Decision below. The Appellate Division’s determination as to whether the hearing record supports a finding of prejudice is not based upon a “credibility determination of the hearing court”, see, Brief for Respondent, at 15-16, nor is it based upon any facts that are in dispute. The Appellate Division’s determination is based upon an assessment of the 2 sufficiency of the undisputed evidence and Bank is challenging the standard by which that determination was made. Compare, People v. Bigelow, 66 N.Y.2d 417, 420-21 (1985) (“probable cause determinations that involve questions of fact, or mixed questions of law and fact, are generally beyond the jurisdiction of this court”, but “[w]hen the issue is the minimum showing necessary to establish probable cause . . . a question of law is presented for our review”). The hearing court made only one “credibility determination” and that was limited to Bank’s claim that his trial attorney’s performance was deficient in terms of his misunderstanding of the applicable sentencing law: The defendant has failed to present sufficient evidence establishing that his trial counsel mistakenly believed that legislation would cause the defendant's potential sentence to run consecutively. His assertions can be seen as self- serving at best. Therefore, this court determines that the defendant has failed to prove that his counsel’s performance during plea negotiations was deficient. See, December 13, 2013 Decision and Order, at 4 (A11). The Appellate Division did not defer to this credibility determination, as the District Attorney suggests, see, Brief for Respondent, at 15 (“the credibility determination of the hearing court . . . is entitled to great deference on appeal”); rather, the Appellate Division explicitly rejected it. See, People v. Bank, 124 A.D.3d 1376, 1377 (4th Dept. 2015) (Aii) (“defendant established at the hearing that defense counsel incorrectly 3 advised him during plea negotiations that he was facing consecutive sentences after conviction”). As to the question of law which is now before this Court – whether the courts below properly applied the legal standard for determining prejudice – the hearing court’s determination, with which the Appellate Division agreed, was based expressly upon the sufficiency of the evidence and not upon an assessment of Bank’s credibility: . . . even if this court accepted the defendant’s allegations concerning the deficiency of his trial attorney, the court determines that the defendant has failed to show that prejudice occurred as a result of his counsel's ineffective assistance. . . The defendant has failed to set forth sufficient proof that his counsel's deficiency caused the People to not make a plea offer in the defendant's case. Certainly the defense has failed to establish that there was any reasonable probability that a plea offer would have been presented to or accepted by the court. December 13, 2013 Decision and Order, at 4 (A11-12) (emphasis added); see, also, See, Bank, 124 A.D.3d at 1377 (Aii) (“the [hearing] court properly concluded that, based on the circumstances of the crime and the strength of the People’s case, the prosecutor would not have offered a plea bargain acceptable to defendant, and that County Court (Connell, J.) would not have agreed to such a plea bargain in any event”). Thus, the District Attorney’s argument about the “great deference” to be paid to the hearing court’s credibility determination has no bearing upon whether 4 the hearing court or the Appellate Division correctly determined the issue of prejudice. And since there is no factual dispute about “the circumstances of the crime [or] the strength of the People’s case”, the issue of whether the Appellate Division correctly applied the legal standard for determining prejudice is a pure question of law, not a “mixed question of law and fact”. See, Brief for Respondent, at 16. Point 2 Mask v. McGinnis has not been abrogated The District Attorney states, without citation, that the holding in Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000) “has been explicitly abrogated by the holdings of the U.S. Supreme Court in Missouri v Frye and Lafler v Cooper.” See, Brief for Respondent, at 21. This is not an accurate or fair statement of the law. First, neither Frye nor Lafler mentions Mask and Bank’s counsel’s research has not found any case which recognizes or even suggests Mask’s abrogation. Second, the holdings in Frye and Lafler are perfectly consistent with the holding in Mask. All three cases rest on the “reasonable probability” standard for determining prejudice as enunciated in Strickland v. Washington, 466 U.S. 668, 694 (1984) (“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). See, Lafler v. Cooper, 132 S. Ct. 1376, 1391 (2012) (“As to prejudice, respondent has shown that but for 5 counsel’s deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea.”); Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012) (“To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.”); Mask, 233 F.3d at 140 (a defendant “need only show that but for counsel’s errors there was a ‘reasonable probability’ that the result of the plea bargaining process would have been different”); see, also, Hines v. Ricci, 2014 WL 314430, at *1 (D.N.J. 2014) (citing to Mask’s application of “the prejudice standard enunciated by the Supreme Court in Strickland . . .”). Third, the observation made by the Mask Court – that a claim of ineffective assistance during plea negotiations does not “require an evaluation of whether the court would have accepted a different plea agreement” – correctly reflects the “reasonable probability” standard. See, Young v. Kaplan, 2015 WL 5706972, at *8 (E.D.N.Y. Sept. 28, 2015) (“A ‘reasonable probability’ means that the errors were of a magnitude such that it ‘undermines confidence in the outcome’”), quoting Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001).1 1 See, also, Strickland, 466 U.S. at 694 (“The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (while “the defendant must show more 6 Point 3 The Appellate Division misapplied the “reasonable probability” standard The Appellate Division’s finding – that Bank “failed to establish that he was deprived of the possibility of a plea bargain acceptable to him as the result of defense counsel’s error” – reflects a misapplication of the “reasonable probability” standard. See, Bank, 124 A.D.3d at 1377 (Aii - Aiii). On this record there is no denying that a plea bargain carrying a sentence of 4-12 years would have been acceptable to Bank. Notwithstanding the District Attorney’s claim that Bank never provided “a definitive statement as to what sentence he would have accepted’”, see, Brief for Respondent, at 18, quoting People v. Thomson (46 A.D.3d 939, 941), the uncontroverted record shows that Bank actually asked his lawyer to inform the District Attorney that he was interested in a plea bargain where he would serve 4 to 12 years. See, November 1, 2007 Bank email to Shapiro (Exhibit E, email 2) (A91) (“Did you mention to him the largest sentence I was willing to accept (4-12). If not, can you mention it to him the next time you talk to him. Curious what he says.”); see, also, Bank than that the unprofessional performance merely had some conceivable effect,” . . . [to] satisfy the ‘reasonable probability’ test, a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.”), quoting Strickland, 466 U.S. at 693 (emphasis provided in Poole). 7 Affidavit, at ¶17 (A70) (explaining that his goal was a range from 3-9 years to 4-12 years so that his conditional release date would come up within 6 or 8 years). There also is no denying that because of Bank’s attorney’s misunderstanding of the sentencing law he never even attempted to negotiate a plea with either the District Attorney or the trial court. See, e.g., August 29, 2008 email from Shapiro to Bank (Exhibit E, email 4) (A95) (“Based on your concerns, if it wasn’t for the new sentencing I would recommend a plea.”). Given these two documented and uncontroverted facts – that Bank asked Shapiro to convey to the prosecutor his interest in a 4-12 year sentence and that Shapiro refused to convey that interest because of his misunderstanding of the law – Bank has clearly shown that there is a “reasonable probability” that the outcome of the proceedings would have been different but for Shapiro’s deficient performance. Under the “reasonable probability” standard, the question is not, as the Appellate Division put it, whether Bank established that Shapiro’s errors deprived him of the possibility of an acceptable plea bargain. The question is whether Shapiro’s errors “were of a magnitude such that they undermine[] confidence in the outcome.” Young, 2015 WL 5706972, at *8. When the question is properly stated this way, the answer is obvious. No one familiar with our criminal justice 8 system can possibly be confident that Bank would have gone to trial even if he had been represented by competent counsel.2 Point 4 The trial court improperly limited Reilly’s testimony Bank testified that had he known that his maximum sentence was 5-15 years he would have thrown himself on the mercy of the trial court if the DA proved unwilling to negotiate. See, Bank Affidavit, at ¶20 (A71) (“If necessary I would have pled guilty to the indictment and asked the Court for leniency at the time of sentencing.”). Assistant Public Defender Reilly testified (before the People’s sustained objection) that in her experience when the District Attorney takes a no plea bargain position and she turns to the trial court for something in exchange for a guilty plea she has “never been refused some concession.” See, October 23, 2013 Hearing Transcript, at 29-30 (A41-42). The hearing court then rejected Bank’s offer of proof through Reilly that this was true in all of the 100 or so cases in which she 2 The Appellate Division’s finding, in addition to reflecting a misapplication of the “reasonable probability” standard, also lacks any record support. Surely “the circumstances of the crime and the strength of the People’s case”, Bank, 124 A.D.3d at 1377, do not, in themselves, preclude the possibility of a plea bargain. Even the most heinous felonies, supported by the most compelling evidence are routinely disposed of by plea bargain rather than by trial. See, e.g., Ross v. Superintendent, 2013 WL 2128808, at *1 (E.D.N.Y. 2013) (defendant who stabbed and killed his brother, an amputee confined to a wheelchair, and then stabbed and killed a friend who attempted to intervene, allowed to pled guilty to one count of murder in the first degree in exchange for the minimum sentence of twenty years to life). 9 appeared before the Monroe County Court during the preceding 5 years. See, October 23, 2013 Hearing Transcript, at 36 (A48). The trial court’s reason for its precluding this part of Reilly’s testimony was that Reilly “had one vehicular homicide case and that’s not in front of Judge Connell.” See, October 23, 2013 Hearing Transcript, at 34 (A47). In the same vein the District Attorney submits that “what other judges did in other types of cases had no bearing on what Judge Connell would have done in this specific case.” See, Brief for Respondent, at 25. Both statements of the hearing court’s reason for its evidentiary rulings are directly at odds with the Supreme Court’s admonition in Strickland: The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. . . Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge’s sentencing practices, should not be considered in the prejudice determination. Strickland, 466 U.S. 668, 695 (1984) (emphasis added); see, also, Hill v. Lockhart, 474 U.S. 52, 59-60 (1985) (“the resolution of the ‘prejudice’ inquiry . . . should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker’”), quoting Strickland, supra. 10 Reilly’s proffered testimony – that in the 100 or more cases where the DA took a no-plea position she had “never been refused some concession” from any of the Monroe County Judges – is highly probative and precise testimony about the Monroe County Court’s standard or practice when asked to make the sort of decision that Judge Connell would have been asked to make if the District Attorney refused to negotiate and Bank had been represented by competent counsel. Reilly’s testimony therefore bears directly upon whether it was “reasonably probable” that Judge Connell would not have “refused some concession” had Bank’s attorney had a correct understanding of the sentencing parameters and carried out his client’s expressed desire to negotiate a plea in the 4- 12 year range. Point 5 Bank does not seek to “reap a windfall” Bank is not seeking to “reap a windfall.” See, Brief for Respondent, at 18- 20. He is seeking to be placed back in the position he was in before he went to trial, only this time with an attorney who has a correct understanding of his potential sentences. This way Bank will be able to meaningfully engage in plea bargaining with the District Attorney and, if unsuccessful, to seek some concession from the trial court. Given that Bank's attorney never attempted to even discuss a plea bargain and thus a plea offer was never made, there is no other way to "neutralize the taint" of the constitutional violation. Lafler, 132 S. Ct. at 1388. CONCLUSION Based upon the forgoing, the Decision of the Appellate Division should be reversed and the judgment of conviction should be vacated. Dated: October 16, 2015 11 Submitted by: LJ~ ROBERT N. ISSEKS Attorney for Defendant-Appellant 6 North Street Middletown, New York 10940 (845) 344-4322
