The People, Respondent,v.Herman Bank, Appellant.BriefN.Y.September 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. 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) 343-5737 Date Completed: August 18, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES …………………..................................................... iii JURISDICTIONAL STATEMENT......................................................................... 1 QUESTIONS PRESENTED ………..……………….…………………………… 1 PROCEDURAL HISTORY ……………………………………………………... 2 THE HEARING EVIDENCE ………………………………………………….... 3 Introduction …………………………………………………………….…. 3 Defendant’s Case …………………………………………………………. 4 Bank’s Testimony …………………………………………………... 4 The Bank-Shapiro Emails ………………………………………….. 8 Testimony of Elizabeth Reilly ……………………………………... 10 The People’s Case …………………………………………………….….. 14 THE STATE AND FEDERAL CONSTITUTIONAL STANDARDS ………… 14 ARGUMENT ….................................................................................................... 18 Point 1 Counsel’s Performance fell below an Objective Standard of Reasonableness ........................................................................................... 18 Point 2 Counsel’s Deficient Performance Prejudiced the Defense …………..…… 21 i Point 3 The Findings and Holdings below Derogate a Defendant’s Right to Attempt to Negotiate a Disposition ………………………………………. 26 Point 4 The County Court should not have rejected Bank’s Offer of Proof ……… 30 CONCLUSION ..................................................................................................... 31 ii TABLE OF AUTHORITIES CASES Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) ……………..…………........ 15, 18, 25 Carrion v. Smith, 365 F. App'x 278 (2d Cir. 2010) ……………………………... 15 Cullen v. United States, 194 F.3d 401 (2d Cir.1999) ………………………….... 20 Davis v. Greiner, 428 F.3d 81 (2d Cir. 2005) ………………………………. 15, 20 Hill v. Lockhart, 474 U.S. 52 (1985) ………………………………………... 15, 16 Lafler v. Cooper, 132 S.Ct. 1376 (2012) ……………………..…………. 14, 16, 30 Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) ……………………………….. 17 Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000) ....………..……..…. 26, 27, 28, 30 Missouri v. Frye, 132 S.Ct. 1376 (2012) ……………………………………...… 14 Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ………………………………….…. 14 Page v. Martuscello, WL 3678820 (S.D.N.Y. 2011) …………………………… 20 People v. Bank, 2015 WL 33619 (4th Dept. 2015) ………………………. 3, 19, 26 People v. Benevento, 91 N.Y.2d 708 (1998) ……………………………………. 17 People v. Caban, 5 N.Y.3d 143 (2005) ……………………………………... 17, 21 People v. Cornelio, 227 A.D.2d 248 (1st Dept. 1996) ………………………….. 29 People v. Graham, 129 A.D.3d 860, 11 N.Y.S.3d 242 (2d Dept. June 10, 2015) ……………………………………………………...… 17 iii. People v. Hernandez, 22 N.Y.3d 972 (2013) ………………………………….... 16 People v. McDonald, 1 N.Y.3d 109 (2003) ……………………………………... 25 People v. Perron, 287 A.D.2d 808 (3d Dept. 2001) …………………………….. 24 People v. Stultz, 2 N.Y.3d 277 (2004) …………………………………………... 17 People v. Turner, 5 N.Y.3d 476 (2005) …………………………………………. 17 Pham v. U.S., 317 F.3d 178 (2d Cir. 2003) …………………………………. 16, 21 Purdy v. Zeldes, 337 F.3d 253 (2d Cir. 2003) …………………………………... 20 Shiwlochan v. Portuondo, 345 F.Supp.2d 242 (2004) ………………………..… 17 Strickland v. Washington, 466 U.S. 668 (1984) …………………………..… 16, 17 United States v. Day, 969 F.2d 39 (3d Cir.1992) ……………………………….. 21 U.S. v. Gordon, 156 F.3d 376 (2d Cir. 1998) …………………………………… 21 U.S. v. Williams, 372 F.3d 96 (2d Cir. 2004) ……………………………..… 27, 28 Von Moltke v. Gillies, 332 U.S. 708 (1948) …………………………………..… 15 STATE STATUTES CPL §70.25(2) ………………………………………………………………….. 19 N.Y. Const. Art. 1 ……………………………………………………………… 17 OTHER Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal Cases (1988) ……..……………………………………………………………… 15 iv. 1 JURISDICTIONAL STATEMENT This brief is submitted on behalf defendant-appellant, Herman Bank (“Bank” or “Defendant”) pursuant to this Court’s Order dated June 22, 2015 granting Bank’s application for leave to appeal pursuant to Criminal Procedure Law §460.20 from an Order of the Appellate Division, Fourth Department entered on January 2, 2015, affirming an Order of the County Court, Monroe County entered December 17, 2013, which denied Bank’s motion pursuant to CPL §440.10(1)(h) for an order vacating the February 27, 2009 judgment of his conviction. The §440.10 motion was based upon Bank’s claim that his state and federal constitutional rights to the effective assistance of counsel were denied during the plea bargaining stage of his trial proceedings due to his trial attorney’s inaccurate understanding and advice regarding potential sentences. (A-ii-A-iii; A- 8-A-12) QUESTIONS PRESENTED 1. Whether Defendant’s trial attorney’s advice fell below an objective standard of reasonableness in violation of Defendant’s federal and state constitutional rights to the effective assistance of counsel. 2. Whether Defendant’s trial attorney’s deficient performance during the plea bargaining stage of the County Court proceedings prejudiced the defense in 2 violation of Defendant’s federal and state constitutional rights to the effective assistance of counsel. PROCEDURAL HISTORY On December 19, 2008, after a bench trial before the late Hon. John J. Connell, Bank was convicted of two counts of manslaughter in the second degree, one count of vehicular manslaughter in the first degree, two counts of vehicular manslaughter in the second degree, vehicular assault in the second degree, operating a motor vehicle while ability impaired by drugs and a one-way violation. On February 27, 2009, Bank was sentenced to 5-15 years imprisonment on each count of manslaughter in the second degree, 5-15 years on the count of vehicular manslaughter in the first degree, 2 1/3-7 years on each count of vehicular manslaughter in the second degree, 1-3 years on the count of vehicular assault in the second degree, $500 fine and revocation of Bank’s driver’s license on the count of operating a motor vehicle while ability impaired by drugs, and a conditional discharge on the one-way violation. All of the terms of imprisonment were ordered to run concurrently with one another. Bank’s §440.10 motion was filed with the County Court on or about April 10, 2013. An evidentiary hearing on the motion was conducted on October 23, 2013 and by Decision and Order dated December 13, 2013, Bank’s motion was 3 denied by the County Court. In that Decision the Court held that “the defendant received meaningful representation by trial counsel, trial counsel’s performance did not fall below an objective standard of reasonableness, and the defendant was not prejudiced by trial counsel’s representation.” See, December 13, 2013 Decision and Order, at 5 (A12). The Appellate Division, Fourth Department, granted Bank’s application for leave to appeal to that Court and by Memorandum Opinion dated January 2, 2015, the Appellate Division held that although Bank “established at the hearing that defense counsel incorrectly advised him during plea negotiations that he was facing consecutive sentences after conviction, defendant 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[.]” People v. Bank, 2015 WL 33619, at *1 (4th Dept. 2015). THE HEARING EVIDENCE Introduction At the October 23, 2013 evidentiary hearing Bank testified that all of the allegations set forth in his affidavit submitted in support of the §440.10 motion are true and accurate and that all of the exhibits are true and accurate copies of the documents referenced in his affidavit. Based on this testimony, Bank’s April 2, 4 2013 affidavit and attached exhibits were received in evidence subject to one stipulated redaction in one of the exhibits. See, October 23, 2013 Hearing Transcript, at 12-14 (A24-26) (redacting from trial counsel’s email to Bank of November 1, 2007 [Bank Affidavit, Exhibit E, email 1] that portion which states that ADA “Rodeman approached me about our case. He was surprised when I told him we were not interested in any plea bargains.”). The People did not offer any evidence to rebut the allegations set forth in Bank’s affidavit (hereinafter referred to as Bank’s “testimony”). Nor did the People offer any evidence to rebut or impeach Bank’s exhibits or to question their authenticity. Thus the proof offered by Bank and received in evidence is essentially uncontroverted. Defendant’s Case Bank’s Testimony Throughout the defense of the indictment Bank was represented by Rochester attorney Robert A. Shapiro, Esq., who is now deceased. See, Bank Affidavit, at ¶¶6 and 10 (A66-68). During the pre-trial stage of the proceedings Mr. Shapiro advised Bank that new legislation had been enacted whereby any sentences on convictions arising out of homicides or injuries resulting from the operation of a motor vehicle while under the influence of drugs or alcohol would 5 have to run consecutively. Specifically, Mr. Shapiro advised Bank that he faced consecutive sentences with an aggregate maximum term of imprisonment of 11½ - 34 years (two consecutive 5-15 year terms on the manslaughter counts and another consecutive term of 1 1/3 - 4 years on the vehicular assault count). Mr. Shapiro further advised Bank that, because of the facts and circumstances of the case, a negotiated a plea would result in a sentence ranging from 6-18 years to 7-21 years. See, Bank Affidavit, at ¶7 (A66-67). Bank did not know at the time that Mr. Shapiro’s advice was incorrect, that there had been no such legislation mandating consecutive terms and that the maximum term of imprisonment that Bank actually faced was 5-15 years. See, Bank Affidavit, at ¶8 (A67). Because Bank accepted Mr. Shapiro’s advice as true and accurate, Bank was guided by an inaccurate projection of his sentencing exposure and a misunderstanding as to the sentencing parameters of a negotiated guilty plea during the plea bargaining stage of the proceedings. See, Bank Affidavit, at ¶8 (A67). Based upon Mr. Shapiro’s incorrect advice, Bank did not believe that a negotiated plea was worth pursuing and Mr. Shapiro never engaged in plea negotiations on Bank’s behalf. Instead, Mr. Shapiro informed the prosecutor assigned to Bank’s case, ADA Christopher Rodeman that Bank was not interested 6 in entering into plea negotiations and, as a result, no offer from the prosecution was ever conveyed to Bank. See, Bank Affidavit, at ¶9 (A67). When considering an acceptable sentencing range Bank was concerned with his age, his parents’ ages, his relationships and his profession, pharmacy. He understood that with an indeterminate sentence there was no guarantee of release prior to his conditional release date and, given the fact that two people had died in the accident and that the victims’ families would likely request the denial of early release, he had to assume that he would not be released before his conditional release date. Thus, Bank’s goal was to receive an indeterminate sentence ranging from 3-9 years to 4-12 years so that his conditional release date would come up within 6 or 8 years. See, Bank Affidavit, at ¶17 (A70). Mr. Shapiro advised Bank that the only way he could receive a sentence within the range that he, Bank, was looking for was to go to trial in the hope of being found guilty of criminally negligent homicide. Thus, Bank went to trial, not to obtain a complete acquittal, but to be found guilty on two counts of a lesser included offense in order to receive sentences (which Mr. Shapiro said must run consecutively) totaling 2 2/3-8 years. See, Bank Affidavit, at ¶18 (A70). Bank knew that his chances at trial were not favorable, especially with a toxicology report that tested positive for cocaine, but based on Mr. Shapiro’s 7 erroneous advice and his leading Bank to believe that there was absolutely no chance of a plea agreement that would result in a sentence of 4-12 years, Bank believed he had more to gain by going to trial. See, Bank Affidavit, at ¶19 (A71). Bank relied on Mr. Shapiro’s erroneous advice in his decision to go to trial. Bank believed a negotiated plea would have to entail consecutive sentences and thus he labored under the misunderstanding that the amount of time that he would have to serve in prison pursuant to a negotiated plea would, of necessity, be much longer than the 4-12 years that he was prepared to accept. Had Bank been properly advised that it was possible for him to negotiate a plea that would not require consecutive sentences he would have instructed Mr. Shapiro to pursue such a plea. If necessary, Bank would have pled guilty to the indictment and asked the Court for leniency at the time of sentencing. Had Bank known that his sentences would be concurrent he never would have gone to trial. See, Bank Affidavit, at ¶20 (A71). In addition to the advice that Bank received from Mr. Shapiro via emails (discussed below) Bank recalls at least two occasions, the latest October 2008, where Mr. Shapiro refused Bank’s request to question the prosecutor about a plea agreement. As a result, Bank was never able to engage in plea bargaining. See, Bank Affidavit, at ¶16 (A70). 8 The Bank-Shapiro Emails Bank’s email correspondence with Mr. Shapiro, attached to Bank’s affidavit as Exhibits C, D, E and F, corroborate Bank’s claim that (1) Mr. Shapiro misadvised Bank as to his sentencing range and that Bank should not even attempt to negotiate a plea bargain, (2) Bank relied upon that deficient advice and (3) had Bank not been misguided by Mr. Shapiro he would have entered into meaningful and likely productive plea negotiations. See, Bank Affidavit, at ¶11 (A68). Specifically, in an email to Mr. Shapiro of September 20, 2007 (Exhibit D, email 1) (A87), Bank wrote: I have a question regarding our conversation about possible jail time and my charges. You said that based on the new law enacted all charges on separate victims must now run consecutive. Does that just include the people who died or must it also include the girl (vehicular assault). Mr. Shapiro emailed back to Bank later that day (Exhibit D, email 2) (A88) stating, “Sentences on ALL separate victims will now run consecutive including the vehicular assault.” (Emphasis in the original.) See, Bank Affidavit, at ¶13 (A68- 69). In a November 1, 2007 email to Shapiro (Exhibit E, email 2) (A91), Bank asked Shapiro: Did you mention to him [ADA Rodeman] 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. 9 Mr. Shapiro responded to that email later that day (Exhibit E, email 3) (A91) stating: No and No. We have discussed this before. Unless your [sic] willing to consider accepting a greater sentence talks with Rodeman would be a waste of time. In Bank’s responding email later that day (Exhibit E, email 4) (A91) he wrote: “Honestly I’m nervous about a trial but theres [sic] no way in hell I’ll willingly accept a sentence of at least 6-18 years without going to trial.” See, Bank Affidavit, at ¶14 (A69). In an email sent to Mr. Shapiro on August 28, 2008 (Exhibit F, email 1) (A95) Bank wrote: “It seems unfair that a person can face a maximum sentence of 15 years for his second vehicular homicide while I’m facing a maximum sentence of 11 and one-third to 34 years with no previous record.” Mr. Shapiro responded with an email on August 29, 2008 (Exhibit F, email 2) (A95), admonishing Bank, “keep in mind you killed 2 people. Regardless of previous convictions, the individual in question only killed one.” Bank emailed back to Mr. Shapiro that same day (Exhibit F, email 3) (A95) stating, “I just wish I had the opportunity to receive a plea bargain with concurrent sentencing like the ones before the new law was enacted.” Mr. Shapiro responded with an email later that day (Exhibit E, email 4) (A95) in which he wrote: “I understand. Based on your concerns, if it 10 wasn’t for the new sentencing I would recommend a plea.” See, Bank Affidavit, at ¶15 (A69-70). Testimony of Elizabeth Reilly Elizabeth Reilly, Esq. has been an attorney in the Monroe County Public Defender’s Office for over nine years. See, October 23, 2013 Hearing Transcript, at 24 (A36). Since 2006 she has been appearing before the Monroe County Courts at least two to three times per week and she has been handling violent felony cases, including a few that have been highly publicized, since 2009. See, October 23, 2013 Hearing Transcript, at 25-27 (A37-39). In Reilly’s experience there have been cases where the District Attorney has taken the position that there would be no plea offered other than a plea to the indictment or top count of the indictment with a recommendation of the maximum sentence or no recommendation at sentencing. See, October 23, 2013 Hearing Transcript, at 27 (A39). When that occurs, and Reilly’s client is interested in resolving the case, it’s customary to ask for a conference with the court. The District Attorney of course would be present and depending on who the Judge is or what their customs and practices are you might present -- and obviously it depends on who the client is and what they have to offer. I have done various things such as presenting mitigation. I have pointed out factual issues with the District Attorney case. I have pointed out legal issues. I have begged. I have done various different things. But you can make an attempt to ask the Court to make a promise on a plea to the indictment. 11 See, October 23, 2013 Hearing Transcript, at 28 (40). As to what the County Court does in those situations, Reilly testified: In my experience the court listens to whatever arguments I bring. If the District Attorney has something they want to say in rebuttal or to make their position known the court will always listen to that. Sometimes the court will ask questions of either party in order to make whatever evaluation that the court would feel it is appropriate and make a determination of whether or not there will be an offer from the court to resolve the case. See, October 23, 2013 Hearing Transcript, at 29 (A41). Reilly’s direct examination proceeded with her being asked the following question and her giving the following answer, after which the District Attorney objected and the objection was sustained: Q. In that process that you have just described does the county court ever refuse to impose a sentence less than the maximum in exchange for a guilty plea? A. In my experience I have never been refused some concession. See, October 23, 2013 Hearing Transcript, at 29-30 (A41-42). Reilly went on to testify that she has appeared before approximately ten Monroe County Judges and she has had occasion to negotiate (or attempt to negotiate) plea bargains before those ten Judges when the District Attorney has taken a no-plea position. See, October 23, 2013 Hearing Transcript, at 31 (A43). Reilly estimates that “in at least a third of the cases” the DA’s Office does not offer 12 any sort of plea and in about 100 or more of those cases Reilly has gone to the Judge to get a plea commitment. See, October 23, 2013 Hearing Transcript, at 31- 32 (A43-44). Reilly was then asked on direct the following question to which the District Attorney’s objection was sustained: In those approximately hundred or more cases in the past five years where you have attempted to negotiate a plea to get something less than the maximum from the Judge when the District Attorney has taken a no plea position how many, if any, has the Judge refused to commit to a sentence of less than the maximum? See, October 23, 2013 Hearing Transcript, at 32 (A44). After unsuccessful attempts to elicit this information, Bank’s counsel concluded Reilly’s direct examination by making the following offer of proof: MR. ISSEKS: Well, your Honor, so that the record is clear we are attempting to offer proof that in the Monroe County Court is likely, more likely than not that an effective attorney who negotiates for his client in a situation where the District Attorney takes a no plea bargain position that the county court here and that all the judges, including Judge Connell, are receptive to such negotiations and routinely, and in fact I believe uniformly from Ms. Reilly's testimony will commit to a sentence of less than the maximum despite the District Attorney's no plea position. We are offering that proof because I submit that is relevant to the issue of whether or not it is reasonably probable that the outcome of Mr. Bank’s case would be different had he had an attorney attempt to negotiate a plea for him, particularly when the maximum he faced was fifteen to life and the record shows that he was prepared to take a plea for a sentence of -- not fifteen to life but five to fifteen would be the maximum and he was prepared in asking his attorney to negotiate a plea that carried a sentence of up to four to twelve. 13 THE COURT: I understand your position, Mr. Isseks. However, the attempt to establish some proof on the basis of more likely than not with respect to all county court judges everywhere in Monroe County over the course of history, I don't believe that you have laid a foundation anywhere near that and so the objection is still sustained. MR. ISSEKS: Well, is my offer of proof clear to the court? THE COURT: It's very clear what you are attempting to ask. And I have allowed you to ask questions about the way that the procedures can proceed. But there is no indication, no basis, no foundation for allowing Ms. Reilly to opine beyond that. MR. ISSEKS: I'm not asking Ms. Reilly to opine. And our offer of proof is that Ms. Reilly would testify that in her years of experience before the county court in a hundred or more cases that when she attempts to – THE COURT: She said at this point she had one vehicular homicide case and that's not in front of Judge Connell. I know that because it was in front of me. So, you haven't laid a foundation. MR. ISSEKS: Understood. And I stand by the court's ruling of course. THE COURT: Okay. MR. ISSEKS: If I may, just finish the offer of proof so the record is clear. That the proof would be that Ms. Reilly’s, her testimony would be in her experience the hundred or more cases before the various county court judges in this county when she attempts to negotiate a plea with the judge for something less than the maximum sentence where the District Attorney takes a no plea position, in all of those cases of a hundred or more the county court is willing to commit to a sentence of less than the maximum. With that offer of proof and understanding the court’s ruling that I cannot go into that and elicit that testimony I have no further questions of this witness. See, October 23, 2013 Hearing Transcript, at 34-35 (A46-47). 14 The People’s Case Through the testimony of Assistant District Attorney Julie Hahn, the People offered proof that the District Attorney was not willing to negotiate a plea in Bank’s case and that had Mr. Shapiro attempted plea negotiations, the People would have insisted upon a plea to the indictment (or at least the top count) with the maximum sentence of 5-15 years. See, October 23, 2013 Hearing Transcript, at 41-45 (A53-57). The People did not offer any evidence to controvert Bank’s proof that Shapiro did not attempt to negotiate a plea bargain. Instead, ADA Hahn testified that during some conversation(s) with Shapiro before the commencement of the trial, the correct sentencing range was mentioned. See, October 23, 2013 Hearing Transcript, at 46-47 (A58-59). This testimony was presumably offered to show, circumstantially, that at some point before it was too late, Mr. Shapiro’s misunderstanding about mandatory consecutive sentences must have been corrected. THE FEDERAL AND STATE CONSTITUTIONAL STANDARDS A defendant’s right to the effective assistance of counsel is “a right that extends to the plea-bargaining process.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012), citing Missouri v. Frye, 132 S.Ct. 1376, 1386-1387 (2012); Padilla v. 15 Kentucky, 130 S.Ct. 1473 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985). “The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case.” Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) While “[t]his decision must ultimately be left to the client’s wishes . . . counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision.” Boria, 99 F.3d at 497, quoting Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal Cases (1988) § 201 at 339 (emphasis in original). “[P]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Boria, 99 F.3d at 497, quoting Von Moltke v. Gillies, 332 U.S. 708, 721 (1948). See, also, Carrion v. Smith, 365 F. App'x 278, 281 (2d Cir. 2010) (“In the context of a defense counsel’s advice surrounding a plea offer, [a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”); Davis v. Greiner, 428 F.3d 81, 88 (2d Cir. 2005) (“counsel has a professional obligation to adequately inform her client about the considerations that are relevant to her client’s decision to accept or deny a plea bargain.”). 16 A defendant asserting a Sixth Amendment claim of ineffectiveness in the plea bargaining process must satisfy the two-part inquiry set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that his attorney’s representation “fell below an objective standard of reasonableness.” Lafler, 132 S.Ct. at 1384, quoting, Hill v. Lockhart, 474 U.S. 52 (1985) (quoting Strickland, 466 U.S. at 688). Then he must “show that the deficient performance prejudiced the defense,” i.e., that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Lafler, 132 S.Ct. at 1384, quoting, Strickland, 466 U.S. at 694; see, also, Pham v. U.S., 317 F.3d 178, 182 (2d Cir. 2003) (where counsel fails to give proper advice as to the implications of a plea of guilty, “a defendant suffers prejudice if there is a reasonable probability that his reliance on counsel’s ineffective assistance affected the outcome of the proceedings”); People v. Hernandez, 22 N.Y.3d 972, 973-78 (2013) (Strickland’s prejudice prong hinges on whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”) (internal quotation marks omitted). The Supreme Court has defined “reasonable probability” as one which “undermine[s] confidence in the outcome.” Strickland, 466 U.S. at 694; see, also, 17 Shiwlochan v. Portuondo, 345 F.Supp.2d 242, 260 (2004), quoting Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (“level of prejudice the defendant need demonstrate lies between prejudice that ‘had some conceivable effect’ and prejudice that ‘more likely than not altered the outcome in the case’”). Under the “meaningful representation” standard of N.Y. Const. Art. 1, §6, the defendant must still satisfy the first part of the Strickland inquiry, see, People v. Turner, 5 N.Y.3d 476, 480 (2005) (“Our cases . . . agree with Strickland on the first prong.”), but “prejudice is examined more generally” and the focus is “on the fairness of the process as a whole rather than on any particular impact on the outcome of the case[.]” People v. Caban, 5 N.Y.3d 143, 156 (2005). Thus it has been observed that the second prong of the State Constitutional standard is ‘somewhat more favorable to defendants’” than Strickland’s “but for” requirement. Turner, 5 N.Y.3d at 480, citing Caban, 5 N.Y.3d at 155–156; People v. Stultz, 2 N.Y.3d 277, 284 (2004); People v. Benevento, 91 N.Y.2d 708, 713–714 (1998); see, also, People v. Graham, 129 A.D.3d 860, 11 N.Y.S.3d 242, 245 (2d Dept. June 10, 2015) (same). 18 ARGUMENT Point 1 Counsel’s Performance fell below an Objective Standard of Reasonableness Contrary to the findings of the County Court, the record on the CPL §440.10 motion clearly shows that Bank’s trial attorney failed to conduct a proper “examination of the law”, Boria, 99 F.3d at 497, and that as a result of this failure he gave Bank inaccurate advice as to Bank’s sentencing exposure and the advisability of pursuing a negotiated disposition. The uncontroverted and corroborated testimony and documents received at the hearing demonstrate that Mr. Shapiro incorrectly advised Bank that consecutive sentences were mandatory. On September 20, 2007, Bank wrote in an email to Shapiro (Exhibit D, email 1) (A91): I have a question regarding our conversation about possible jail time and my charges. You said that based on the new law enacted all charges on separate victims must now run consecutive. Does that just include the people who died or must it also include the girl (vehicular assault). In a responding email later that day (Exhibit D, email 2) (A91), Shapiro advised Bank that “[s]entences on ALL separate victims will now run consecutive including the vehicular assault.” (emphasis in original.) On August 29, 2008 Bank wrote to Shapiro (Exhibit F, email 3) (A95) saying, “I just wish I had the opportunity to receive a plea bargain with concurrent sentencing like the ones 19 before the new law was enacted”, and Shapiro responded (Exhibit E, email 4) (A95), “I understand. Based on your concerns, if it wasn’t for the new sentencing I would recommend a plea.” There is no question that Shapiro’s advice to Bank was incorrect. See, Bank, 2015 WL 33619, at *1 (Bank “established at the hearing that defense counsel incorrectly advised him during plea negotiations that he was facing consecutive sentences after conviction”). Not only were consecutive sentences not mandatory, they were not even an option. See, CPL §70.25(2) (“When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.”). Again, the emails between Bank and Shapiro were received in evidence and the People offered nothing to controvert their contents or to otherwise impeach their reliability. Thus, it was plain error for the County Court to find that Bank “failed to present sufficient evidence establishing that his trial counsel mistakenly 20 believed that legislation would cause the defendant’s potential sentence to run consecutively.” See, December 13, 2013 Decision and Order, at 4 (A11).1 It cannot be gainsaid that Shapiro’s inaccurate advice to Bank regarding consecutive sentences falls below an objective standard of reasonableness. It is never objectively reasonable for a defense attorney to misinform his client as to his potential sentences. “[A] defendant’s ‘potential sentencing exposure at trial’ is a ‘key consideration for defendant in making an informed decision’ because ‘knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.’” Page v. Martuscello, WL 3678820, 18 (S.D.N.Y. 2011), quoting Davis, 428 F.3d at 88–89; see, also, Cullen v. United States, 194 F.3d 401, 404 (2d Cir.1999) (trial counsel ineffective for, inter alia, providing a “significantly inaccurate calculation of sentencing ranges upon a plea and upon conviction after 1 While Bank’s testimony may certainly be regarded as “self-serving”, this fact alone is not a sufficient basis for finding that it lacks credibility. See, Cullen v. United States, 194 F.3d 401, 407–08 (2d Cir.1999) [“Though a claim that [the defendant] would have accepted the plea would be self-serving (like most testimony by witnesses who are parties), it ought not to be rejected solely on this account. . . The credibility determination should be based on all relevant circumstances.”]; see, also, Purdy v. Zeldes, 337 F.3d 253, 259-60 (2d Cir. 2003) (the “simple recognition that in most circumstances a convicted felon’s self-serving testimony is not likely to be credible . . . does not relieve habeas courts of their responsibility to actually make a credibility finding in each case, even absent objective evidence”). 21 trial”); U.S. v. Gordon, 156 F.3d 376, 379-381 (2d Cir. 1998) (“By grossly underestimating Gordon’s sentencing exposure in a letter to his client, Dedes breached his duty as a defense lawyer in a criminal case ‘to advise his client fully on whether a particular plea to a charge appears desirable.’”); United States v. Day, 969 F.2d 39, 44 (3d Cir.1992) (trial counsel was ineffective by giving defendant substandard advice about his sentence exposure during plea negotiations). With the unrebutted attorney-client emails demonstrating that (1) Bank repeatedly told Shapiro of his desire to negotiate a plea which would result in concurrent as opposed to consecutive sentences and (2) Shapiro repeatedly misadvised Bank about his sentence exposure and thus the impossibility of negotiating such a plea, it is difficult to imagine a §440.10 record with stronger objective evidence of the unreasonableness of counsel’s performance. Point 2 Counsel’s Deficient Performance Prejudiced the Defense The instant record amply demonstrates both the “reasonable probability” that Shapiro’s incorrect advice as to consecutive sentences “affected the outcome of the proceedings”, Pham, 317 F.3d at 182, and that Bank was denied “meaningful representation” based “on the [un]fairness of the process as a whole”, Caban, 5 N.Y.3d at 156. 22 First, the emails between Bank and Shapiro show that Shapiro’s misunderstanding of the sentencing law and his corresponding incorrect advice to Bank had the affect of deterring both Shapiro and Bank from even attempting to negotiate a plea. Specifically, in response to Shapiro’s November 1, 2007 email to Bank (Exhibit E, email 1) (A92) reporting that he, Shapiro, told ADA Rodeman that “we were not interested in any plea bargains”, Bank emailed Shapiro two questions: “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.” Shapiro emailed back his answers to defendant’s two questions: “No and No. We have discussed this before. Unless you are willing to consider accepting a greater sentence talks with Rodeman would be a waste of time.” In the final email of that day Bank states, “Honestly I’m nervous about a trial but theres [sic] no way in hell I’ll willingly accept a sentence of at least 6-18 years without going to trial.” These November 1, 2007 emails prove three things, unequivocally: (1) that Shapiro told ADA Rodeman that he and Bank were “not interested in any plea bargains”, (2) Bank was actually willing to negotiate a plea in the sentencing range of 4-12 years, and (3) Bank was under the misimpression, based on Shapiro’s advice, that the lowest sentence he could hope to obtain by pleading guilty was 6- 18 years – a sentence greater than the 5-15 year maximum imposed after trial. 23 Certainly if Shapiro had understood that the maximum time that his client faced was 5-15 years, he would have conveyed his client’s interest in a sentence of 4-12 years to ADA Rodeman and/or the Court. Tellingly, ADA Hahn, the People’s sole witness, did not testify that Mr. Shapiro ever attempted to negotiate a plea or that the subject of a plea bargain even came up. Other than her testimony about the People’s no-plea position, the only thing Ms. Hahn stated was that at some unspecified time(s) she and Mr. Shapiro had a conversation where the correct sentencing range was mentioned. See, October 23, 2013 Hearing Transcript, at 46-47 (A58-59). Certainly, if Mr. Shapiro had tried to negotiate a plea bargain, either Ms. Hahn would have so testified or the People would have called Mr. Rodeman or some other ADA involved in the case to testify to this fact. While it is true that the People do not have the burden of proving prejudice, it is also true that if Mr. Shapiro had ever brought up the possibility of a guilty plea to anyone in the District Attorney’s Office (or in her/his presence), that prosecutor would have been called to testify that that was so. But that is not all. With the email exchange between Bank and Shapiro on August 28-29, 2008 (Exhibit F) (A95), the proof becomes even more explicit that Shapiro’s inaccurate understanding and advice prevented Bank from entering into plea negotiations. That exchange started off with Bank writing on August 28: “It 24 seems unfair that a person can face a maximum sentence of 15 years for his second vehicular homicide while I’m facing a maximum sentence of 11 and one-third to 34 years with no previous record.” (Exhibit F, email 1) (A95) Shapiro responded with an email on August 29, 2008 (see Exhibit F, email 2) (A95) which made no comment on Bank’s mistaken belief that he was facing a sentence of 11 1/3 to 34 years and instead admonished Bank to “keep in mind you killed 2 people. Regardless of previous convictions, the individual in question only killed one.” Bank then wrote: “I just wish I had the opportunity to receive a plea bargain with concurrent sentencing like the ones before the new law was enacted.” And Shapiro responded: “I understand. Based on your concerns, if it wasn’t for the new sentencing I would recommend a plea.” Again, it is difficult to imagine more compelling proof than these emails that Shapiro’s deficient performance prevented Bank from meaningfully and intelligently participating in the plea bargaining process. Compare, People v. Perron, 287 A.D.2d 808, 809 (3d Dept. 2001) (“counsel’s erroneous advice concerning the maximum sentence that defendant could receive if convicted of the crimes properly charged, demonstrates patent prejudice since defendant was prevented from properly assessing the risks associated with proceeding to trial as 25 opposed to concluding with a negotiated plea”).2 Moreover, there is the compelling trial evidence of Bank’s guilt, including the proof that when the fatal collision occurred Bank was traveling southbound on a northbound lane with an extremely high level of cocaine in his blood, and that when Bank was asked by the police to voluntarily submit to a blood test, he refused on three separate occasions stating that he had made a mistake earlier with a prostitute who blew cocaine smoke into his mouth. There can be little question on these facts that a negotiated plea was something that an effective trial attorney would have strongly recommended. Compare, Boria, 99 F.3d at 497 (“had [trial counsel] taken the trouble to learn of the ruinous statements petitioner had made after his arrest, the probability of persuading him to accept the plea bargain would have matured from a ‘reasonable probability’ to a very strong likelihood”). 2 Contrast, People v. McDonald, 1 N.Y.3d 109, 115 (2003) (defendant failed to make a prima facie showing of prejudice where the supporting affirmation annexed to the defendant’s motion to vacate the judgment of conviction was made by trial counsel and it “merely state[d] that counsel misinformed defendant as to the deportation consequences of his guilty plea and that defendant relied on the incorrect advice when entering the plea” and it made “no factual allegation that, but for counsel's error, defendant would not have pleaded guilty”). 26 Point 3 The Findings and Holdings below Derogate a Defendant’s Right to Attempt to Negotiate a Disposition The County Court’s findings that “no plea offer would have been made” to Bank and that Judge Connell would not have accepted a plea offer, see, December 13, 2013 Decision and Order, at 5 (A12), and the Appellate Division’s holding 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”, see, People v. Bank, 2015 WL 33619, at *1 (4th Dept. 2015), each reflect an inadequate concern for a criminal defendant’s constitutional right to attempt to negotiate either a plea offer or a sentence commitment. That specific right was discussed and made explicit by the Second Circuit in Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000). In Mask the defendant had filed a C.P.L. §440.10 motion in which he maintained that his trial counsel was ineffective “by failing to inform him of the correct minimum sentence that the prosecutor could legally offer in a plea, and that Mask’s belief as to the minimum available plea was overstated by counsel’s failure to correct the prosecutor’s assertions that Mask was a persistent violent felon under the terms of the statute.” Mask, 233 F.3d at 136. Mask supported his motion with, inter alia, his own affidavit stating “that he would have considered an offer of from eight to sixteen years had it been offered to him.” Id. Similar to the holdings 27 below, the state trial court in Mask denied the §440.10 motion, stating that Mask had failed to demonstrate adequately that “but-for” the failure of counsel in determining his status, Mask would have otherwise received a lower sentence from a plea. Mask, 233 F.3d at 137. The state trial court held that given Mask’s tendency to violent behavior, even if his counsel had detected the error, the “Court ha[d] serious doubts about the purported willingness of the prosecutrix to offer a lesser plea had defense counsel discovered the mistake.” Id. The state trial court also stated, similar to the finding below, that even had the prosecutor offered a lower sentence, there was no indication that the court would have accepted it. Id. The Appellate Division affirmed and leave to appeal to this Court was denied. The Second Circuit held that the state courts applied the wrong standard and that Mask was “required to demonstrate only ‘probability’ that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different’”. Mask, 233 F.3d at 140. The Mask Court explained that “nothing in the standards established by the Supreme Court . . . require an evaluation of whether the [state] court would have accepted a different plea agreement.” Id. In U.S. v. Williams, 372 F.3d 96 (2d Cir. 2004), the Government argued, in the same vein as ADA Hahn’s testimony, that counsel’s failure to seek a plea offer made no difference because “it never had and never would have offered Williams a 28 plea agreement involving a sentence short of life imprisonment.” Williams, 372 F.3d at 107. Unlike the courts below, the Second Circuit rejected this argument, refusing to take the government’s hardline bargaining position at face value. The government claims that it would not have consented to any sentence short of life imprisonment. Yet, in circumstances like this, it is the job of defense counsel to convince, or at least attempt to convince the government, why that position is unreasonable and not in the government's best interests. In addition, if Williams had a zealous advocate, the government would have had more incentive to negotiate a plea agreement and might not have taken such a strong stance against plea bargaining in the first place. Williams, 372 F.3d at 107. Although Williams was a Sixth Amendment conflict- of-interests case, and the issue there was “adverse affect” rather than “prejudice”, the Second Circuit’s reasoning applies with equal force to Bank’s constitutional injury. While Shapiro had no conflict of interests, the fact remains that he “failed to make any significant effort at plea bargaining when circumstances dictated that he should have.” Williams, 372 F.3d at 107. However, even assuming that the courts below correctly found that the People would not have been willing to make a plea offer, it was nevertheless error for the courts to also find (explicitly or implicitly) that Shapiro would not have been able to obtain a sentencing commitment from Judge Connell in exchange for a plea to the indictment. Such an “evaluation of whether the [sentencing] court would have accepted a different plea agreement”, Mask, 233 F.3d at 140, is 29 necessarily speculative, as courts routinely impose greater sentences after trial than they would have imposed had the defendant pled guilty, and no judge can possibly determine whether another judge would have been willing to make a sentencing commitment in exchange for a plea to the indictment. Compare, e.g., People v. Cornelio, 227 A.D.2d 248, 248 (1st Dept. 1996) (guilty plea not coerced even though “court advised defendant that he faced a possible 100 years in prison which, based on the facts known to it, it would not hesitate to impose”). Indeed, the findings below – that Judge Connell would not have agreed to a sentence cap – was particularly speculative since it was based upon what Judge Connell said at the time of sentencing and thus after the trial when many exacerbating facts about Bank’s psychiatric and drug history first came to light. See, Testimony of Dr. J. Richard Ciccone, Trial Transcript, at 341 (A99) (“in the course of my examination of Mr. Banks [sic] I learned a lot about him as an individual, his upbringing, his schooling, his work history, his social history. But of special relevance was his psychiatric history. . .”). Thus, what Judge Connell said at Bank’s sentencing has simply no probative value on the issue of whether Judge Connell would have been willing to impose a sentence slightly less than 5- 15 in exchange for Bank’s expressing remorse and relieving the People and the victims’ families of the burdens of a trial. 30 Point 4 The County Court should not have rejected Bank’s Offer of Proof Although there is sufficient proof in the hearing record to support a finding of prejudice and there is “nothing in the standards established by the Supreme Court . . . requir[ing] an evaluation of whether the [state] court would have accepted a different plea agreement”, Mask, 233 F.3d at 140, Bank submits, in the alternative, that his rejected offer of proof through the testimony of Attorney Reilly would have clearly demonstrated that there is more than “a reasonable probability that, but for counsel’s unprofessional errors,” Lafler, 132 S.Ct. at 1384, Bank would have been able to obtain a sentencing commitment from the trial court. Reilly would have testified that she handled approximately 100 cases before the Monroe County Court Judges in the past 5 years where the People refused to plea bargain and that in those cases she has “never been refused some concession” by the trial court. This testimony, coupled with the uncontroverted proof of Bank’s desire to reach a negotiated disposition, is not only relevant and admissible, it proves that had attorney Shapiro sought a cap to something less than the 15-year maximum, Bank would never have gone to trial. CONCLUSION Based upon the forgoing, the Decision of the Appellate Division should be reversed and the judgment of conviction should be vacated. Dated: August J%, 2015 31 Submitted by: ROBERT N. ISSEKS Attorney for Defendant-Appellant 6 North Street t\1iddletown, New York 10940 (845) 344-4322