The People, Respondent,v.Herman Bank, Appellant.BriefN.Y.September 15, 2016Brief Completed: October 7, 20 15 To Be Argued By: Leah R. Mervine Time Requested: 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- HERMAN BANK, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL 2015-00175 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Leah R. Mervine Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4354 Fax: (585) 753-4576 TABLE OF CONTENTS Page QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 4 STATEMENT OF FACTS 6 POINTS I and II Defendant failed to establish that but for his attorney's misunderstanding, it was reasonably probable that a plea bargain acceptable to defendant would have been reached. 14 i. The Appellate Division applied the proper legal standard. 15 ii. The Appellate Division's findings are supported by the record. 16 iii. Defendant impermissibly seeks to reap a windfall. 18 POINT III Defendant has no constitutional right a plea offer. 21 POINT IV County Court did not abuse its discretion in sustaining objections to improper questions at the hearing. 24 CONCLUSION 27 TABLE OF AUTHORITIES CASES Lafjler v Cooper, _ US _, 132 S Ct 1376, 1385, 182 LEd 2d 398 (2012) ..... .. .. 15, 19,21 Maskv McGinnis, 233 F 3d 132 (2d Cir 2000) ..................................... 21 Missouri v Frye, _us -·, 132 S Ct 1399, 1409, 182 LEd 2d 379 (2012) ..... . ...... 15,21 People v Abar, 99 NY2d 406 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v Adams, 20 NY3d 608 (2013) . . .... ................. .. ........ ... ........ 21 People v Aska, 91 NY2d 979 (1998) . ... ................... ... ................... 24 People v Bank, 124 AD3d 1376 (4th Dept 2015) .................................. 5, 13 People v Bank, 129 AD3d 1445 (4th Dept 2015) .. ... ........ .... ....... . ............ 5 People v Britton, 49 AD 3d 893 (2d Dept 2008), lv denied 10 NY3d 956 (2008) . . . . . . . . . . . 15 People v Garcia, 19 AD3d 17 (1st Dept 2005) ... ........ .. ...... ...... . .... . ... 13, 15 People v Harrison, 57 NY2d 470 (1982) ....................... . .................. 18 People v Hernandez, 22 NY3d 972 (2013) ...... . ................. . .. .............. 18 People v Howard, 22 NY3d 388 (2013) ............. . ............................. 14 People v Lane, 83 AD3d 1118 (3d Dept 2011), lv denied 17 NY3d 818 (2011) . . .... .... .. 17 People v Lashway, 25 NY3d 478 (2015) .......................................... 14 People v Maldonado, 116 AD 3d 980 (2d Dept 2014 ), on remand 130 AD 3d 1070 (2d Dept 2015) . ..... . . .. ......... . ......... .. ...... . .. .. ....... ... ...... .. 19 People v Prochilo, 41 NY2d 759 (1977) ........... .. ........ .... ................. 16 People v Ragland, 240 AD2d 598 (2d Dept 1997), lv denied 90 NY2d 1013 ( 1997), 91 NY2d 929 (1998) ... . .......... . ......... .. ............................. 26 II People v Thomson, 46 AD 3d 939 (3d Dept 2007), lv denied 9 NY3d 1039 (2008) . . . . . . . . . . 18 United States v Carmichael, 216 F 3d 224 (2d Cir 2000) . . .. . . . . . . . . .. . . . .. . .. . .. . . .. 25 United States v Morrison, 449 US 361 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v Williams, 372 F 3d 96 (2d Cir 2004) .................. .... .... .... ... 22 STATUTES CPL§440 ...... . ....................................... 7, 11, 12, 14, 15, 16, 17,24, 26 Penal Law§ 120.03 ..... .. ...... .. ..... . ....... .. ...... .. ............ .. . .. .. 4, 6 Penal Law§ 125.12 .. . ...... . . .... ... .... .. ..... .. . .. .... .. . ... . ...... ... ... 4, 6 Penal Law§ 125.13 ........................................... ... ... ..... ... 4, 6 Penal Law§ 125.15 .... . ....................................... .. .... ... .... 4, 6 Vehicle and Traffic Law§ 1127 .......... . .......... . ....... . ..... . ...... ... .... . 4 Vehicle and Traffic Law § 1192 ......... . .................... . .... . .............. 4 Ill Questions 1 and 2: Question: Answer of County Court: Answer of the Appellate Division: QUESTION PRESENTED Was defendant entitled to vacatur of his conviction on the ground of ineffective assistance of counsel at the pre-trial stage? No. After holding a hearing, the court found defendant received meaningful representation by trial counsel and failed to show that prejudice occurred as a result of his attorney's ineffective assistance. No. The Appellate Division unanimously affirmed County Court finding that defendant failed to meet his burden to establish that counsel's errors deprived him of the possibility of a plea bargain acceptable to him. 1 Question 3: Question: Answer of County Court: Answer of the Appellate Division: Did County Court and the Appellate Division fail to reflect an adequate concern for a criminal defendant's constitutional right to attempt to negotiate a plea bargain? Not addressed. Not addressed. 2 Question 4: Question: Answer of County Court: Answer of the Appellate Division: Did County Court abuse its discretion by sustaining objections at the hearing? Presumably, no. The Appellate Division unanimously affirmed County Court finding this remaining contention lacked merit. 3 PRELIMINARY STATEMENT Defendant Herman Bank was convicted in Monroe County Court (Hon. John J. Connell, J. [deceased]), upon a non-jury verdict rendered on December 19, 2008, of manslaughter in the second degree (Penal Law§ 125.15 [1]) (two counts), vehicular manslaughter in the first degree (Penal Law§ 125.13 [4]), vehicular manslaughter in the second degree (Penal Law§ 125.12 [1]) (two counts), vehicular assault in the second degree (Penal Law§ 120.03 [1]), operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law § 1192 [ 4 ]), and a one-way violation (Vehicle and Traffic Law§ 1127 [a]). At his sentencing on February 27, 2009 the late Judge Connell told defendant, that the court was "limited in what sentence can be imposed" noting defendant's criminal actions "call for the maximum, more than the maximum" (Supplemental Appendix [hereinafter "S"] 20). The court then imposed an aggregate indeterminate tenn of incarceration of 5 to 15 years (S20-S2l). In the intervening three years between defendant's sentencing and his filing of a motion pursuant to Criminal Procedure Law article 440, both defendant's attorney and the trial Judge passed away. In his motion, defendant sought to vacate the judgment of conviction on the ground of ineffective assistance of counsel at the pre-trial stages. A hearing was held after which Monroe County 4 Court (Hon. Douglas A. Randall, J.) denied defendant's motion and defendant sought leave to the Appellate Division. The Appellate Division affirmed Monroe County Court (People v Bank, 124 AD3d 1376 [4th Dept 2015]). This Court granted leave (Hon. Jonathan Lippman, C.J.). The Appellate Division subsequently heard defendant's direct appeal and as a result, again affirmed defendant's conviction, but modified insofar as the two counts of vehicular manslaughter in the second degree and the one count of operating a motor vehicle while impaired by drugs were dismissed as lesser included counts of vehicular manslaughter in the first degree (see People v Bank, 129 AD3d 1445 [4th Dept 2015]). Leave to appeal to this Court was also granted on defendant's direct appeal (Hon. Jonathan Lippman, C.J.) and that matter is scheduled to be briefed in November 2015 (APL-2015-00222). In the interim, there has been no stay of the sentence, and defendant is currently incarcerated in Collins Correctional Facility ([DIN: 09-B-0817] http://nysdoccslookup.doccs.ny.gov). 5 STATEMENT OF FACTS On July 13, 2007, a Monroe County Grand Jury indicted defendant on charges of manslaughter in the second degree (Penal Law§ 125.15 [1]) (two counts), vehicular manslaughter in the first degree (Penal Law§ 125.13 [4]), vehicular manslaughter in the second degree (Penal Law§ 125.12 [1]) (two counts), vehicular assault in the second degree (Penal Law§ 120.03 [1]), operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law § 1192 [ 4 ]), and a one-way violation (Vehicle and Traffic Law§ 1127 [a]). The indictment stemmed from an incident that occurred on May 27, 2007 where defendant, who was operating a motor vehicle after having voluntarily become impaired by the use of cocaine, drove the wrong-way on an interstate in Monroe County and crashed nearly head-on into another vehicle at highway speed, killing two young adults, Henry Rivera and Pedro Hernandez, and seriously physically injuring A B , all three friends who were on their way home from a movie theater. Defendant was arraigned in the presence of his attorney, Robert Shapiro, Esq. who died on August 15, 2010 (Appendix [hereinafter "A"] 76). Defendant pleaded not guilty and, after a pre-trial hearing that is not in issue on appeal, the case proceeded to a bench trial which is also not at issue in this appeal. After this 6 trial, defendant was found guilty of all of the counts of the indictment and sentenced to an aggregate indeterminate term of incarceration of 5 to 15 years in the Department of Corrections. Criminal Procedure Law § 440 Motion Defendant, who became aware before his sentencing that his attorney held a mistaken belief about the range of sentencing options, purposefully decided not to come forward with this issue for three years (A32-A33). On or about April9, 2013, defendant filed a motion pursuant to CPL article 440, seeking to vacate the judgment of conviction on the ground of ineffective assistance of counsel at the pre-trial stages. The case was reassigned to the Honorable Douglas A. Randall in Monroe County Court due to the fact that the Honorable John J. Connell died on May 15, 2010. The court ordered a hearing on the motion and that hearing was conducted on October 23, 2013. Criminal Procedure Law§ 440 Hearine Rather than testify, defendant took the stand, over the People's objection, and was permitted to lay a foundation for his affidavit so that it could be put in evidence in lieu of testimony (Al8-A26). By stipulation, Exhibit E and the double-hearsay contained in paragraph 14 of the affidavit was redacted (A25- A26). 7 On cross-examination, defendant explained that he "knew that [he] wasn't going to walk away without being convicted of something" (A27). Initially, when defendant was asked what his pre-trial understanding was of his minimum exposure at trial, defendant explained, "[w]e really didn't discuss much into that" (A-27). Yet, then defendant explained that his "best chance for the lowest that [he] would get" is if he could obtain a conviction "for negligent homicide" (A27). Defendant explained that "when [he] told [his attorney] what [he] was looking for [defendant's attorney] said the only way that you can receive something was to go to trial for negligent homicide" (A28). Defendant believed that this would be his best chance to receive the sentence "[he] was looking for" (A27), an indeterminate sentence in the range of "2 2/3 to 8 years" (A29). Defendant further confirmed that when he believed he was facing a maximum of 34 years of incarceration, the most he would have accepted before trial was an indeterminate term of 4 to 12 years, noting he thought "eighteen [years] was too high" and he would have rather gone to trial (A29). Defendant further testified on cross-examination that he "realized the error before sentencing" (A30) when his attorney visited him in jail before sentencing and informed defendant "that he made a mistake" (A31). Thus, defendant was aware at least before sentencing that the maximum sentence he was facing was 8 actually an indeterminate tenn of 5 to 15 years (A32). Yet, defendant confinned that when he spoke at sentencing, he purposefully did not mention that he was misadvised about the sentence range (A33, A35). Defendant also called Assistant Public Defender Elizabeth Reilly, Esq. to testify. Ms. Reilly began practicing in Monroe County Court in 2006, but did not begin handling violent felonies until2009 (A37-A38). When Ms. Reilly was asked if there was ever an occasion where she had attempted to negotiate a plea bargain with Judge Connell after the People declined to make an offer, Ms. Reilly responded, "I'm sure that there were but I can't say specifically with that specific Judge" (A42). Ms. Reilly further explained that over the course of her entire career, she had handled only "[o]ne case that involved a vehicular homicide" (A44). That case ended up going to trial before Judge Randall (A45, A47). For the People: Assistant District Attorney Julie Finocchio Hahn testified that she had been a prosecutor with the Monroe County District Attorney's Office for 15 years and back in 2008 was the head of OWl Bureau (A51-A52). ADA Hahn explained she "had taken over as chief of the OWl Bureau in January for Chris Rodeman who was a prosecutor with my office who headed that bureau previously" (A53). When 9 ADA Hahn became the prosecutor of record for this case "in January [2008, it] had already been indicted and it was pending before Judge Connell in Monroe County Court" (A53). ADA Hahn was responsible for this case for almost one year before it went to trial in December of 2008 (A52-A53, A57). During the course of that year, ADA Hahn spoke to defendant's attorney "many times about this case, not just ... about the plea or if there would be a plea" (A59). ADA Hahn explained that the case involved "a very horrific crash" (A53) and that this "wasn't the kind of case that [she] felt was the type of case that should be plea bargainedn (A54). She further stated she "would seek the maximum" (A54) given the case against defendant was "very strong" in that there were multiple eyewitnesses to the wrong-way crash including the lone surviving victim who was able to describe "what had happened just moments before [the crash] occurred," and strong evidence that defendant "was under the influence of cocaine at the time that he crashed into the victim[s'] vehicle" (A56-A57). Further, ADA Hahn described how two victims were killed and noted their families "were very distraught over the incident and had expressed from the moment that [she] met them that they wanted the prosecution to the fullest extent possible" (A56; see A54). As a result, ADA Hahn testified that she "explained to [the defendant's attorney] that this wasn't the kind of case that [she] felt warranted 10 a plea bargain. I was not making any offers on the case. That was made clear to [the defendant's attorney]" (A59). ADA Hahn explained that even had she felt an offer was appropriate, "given the magnitude of the case" even as head of the DWI Bureau, she would have still needed the approval of the District Attorney of Monroe County to authorize any reduction from the maximum (A59-A60). ADA Hahn's statements at the hearing mirror the statements she made at defendant's sentencing. At sentencing, ADA Hahn told Judge Connell, defendant "only faces a maximum of five to fifteen years for killing two people and injuring one. That hardly seems adequate, your Honor, and I know this Court cannot impose more, but if anybody deserves more, it's the defendant, Herman Bank" (Sll). ADA Hahn continued, "[h]e deserves a lot more time than that and it's unfortunate the guidelines do not provide for more" (id.). These statements were introduced by the People at the 440 hearing when the · sentencing transcript was put into evidence. Also included in the sentencing transcript were Judge Connell's statements. In the transcript, Judge Connell made it clear that he grappled with the fact "there is nothing I can do to address the fullness of what occurred and I can't correct anything" (S 17). Judge Connell told defendant "[y]ou're fortunate that the law as it exists can't take [the fact you were a phannacist who was driving high on cocaine] into consideration" (Sl9). Then ll Judge Connell noted he was "limited in what sentence can be imposed," noting defendant's criminal actions "call for the maximum, more than the maximum" (S20). Criminal Procedure Law § 440 Decision In a written decision dated December 13, 2013, Judge Randall found defendant's statements to be "self serving at best" and "determine[ d) that the defendant has failed to prove that his counsel's performance during plea negotiations was deficient" (All). Judge Randall explained that "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" (A12). The court determined that the People would not have extended an offer with less than the maximum sentence and even "if such plea offer was made, the trial court would not have accepted such offer based upon the trial court's comments during the defendant's sentencing that the punishment was not enough" (A12). The Decision of the Appellate Division A unanimous Appellate Division affirmed County Court's finding that defendant failed to meet his burden of "establishing that 'it [was] reasonably probable that a plea bargain acceptable to defendant would have been reached but 12 for counsel's failure'" (Bank, 124 AD3d at 1377, quoting People v Garcia, 19 AD 3d 17, 22 [1st Dept 2005]). "Although defendant 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 the possibility of a plea bargain acceptable to him as the result of defense counsel's error" (id.). Defendant sought leave to appeal to this Court and it was granted on June 22, 2015 by Chief Judge Lippman. 13 POINTS I and II Defendant failed to establish that but for his attorney's misunderstanding, it was reasonably probable that a plea bargain acceptable to defendant would have been reached. While the CPL 440 court found that defendant failed to establish that his counsel's performance was deficient, the Appellate Division found defendant established at the hearing that defense counsel incorrectly advised defendant that he was facing consecutive sentences after conviction. Both courts, however, held that defendant failed to meet his burden to demonstrate that he was prejudiced by counsel's misunderstanding. "Where the hearing court's findings, expressly made under the proper evidentiary standard, are affirmed by the Appellate Division, this Court's review is limited to whether the decisions below are affected by an error of law or are otherwise not supported by the record" (People v Lashway, 25 NY3d 478,483 [2015]). "Mixed questions are beyond [the Court of Appeal' s] review powers so long as record support exists for the determination made by the lower courts'' (People v Howard, 22 NY3d 388,403 [2013]). The Appellate Division's holding below is based on the correct law and its findings are soundly supported by the record. 14 i. The Appellate Division applied the proper legal standard. At the CPL 440 hearing, defendant had the burden to establish that "it [was] reasonably probable that a plea bargain acceptable to defendant would have been reached but for counsel's failure" (Garcia, 19 AD3d at 22; see Missouri v Frye,_ US_, 132 S Ct 1399, 1409, 182 LEd 2d 379 [2012]). Defendant failed to meet this burden. This standard was reiterated in Lafler v Cooper,(_ US_, 132 S Ct 1376, 1385, 182 LEd 2d 398 [2012]) where the U.S. Supreme Court held that a defendant is required to "show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)." Further the defendant must establish "that the court would have accepted [the plea bargain's] terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed" (id.). Recognizing that "[t]he credibility determination of the hearing court, with its particular advantages of having seen and heard the witnesses, is entitled to great deference on appeal and will not be disturbed unless clearly erroneous" (People v 15 Britton, 49 AD3d 893, 894 [2d Dept 2008], lv denied 10 NY3d 956 [2008] [internal citations omitted]; see People v Prochilo, 41 NY2d 759,761 [1977]), the Appellate Division, applying the proper law, correctly upheld the CPL 440 court's determination. ii. The Appellate Division's findings are supported by the record. With mixed questions of law and fact, this Court "may disturb an Appellate Division determination ... only if it lacks any record support (People v Abar, 99 NY2d 406, 409 [2003]). Here, the record soundly supports the Appellate Division's determination that defendant failed to establish that there was any reasonable probability that: 1) a reduced plea would have been offered; and 2) that defendant would have accepted that reduced plea if it had been offered. First, defendant failed to meet his burden to show that an offer would have been made if not for his attorney's misunderstanding of the sentencing range. The record was clear that the People firmly opposed any reduction of this case especially given the fact the maximum sentence defendant was facing for killing two young adults and seriously physically injuring a third was only an aggregate indeterminate sentence of 5 to 15 years. Nor did defendant provide any proof to establish that Judge Connell would have undercut the People by extending an offer to a reduced sentence in exchange for a plea to the full indictment. 16 Second, defendant also failed to establish that had an offer been extended, he would have accepted it (see People v Lane, 83 AD3d 1118, lll8-lli9 [3d Dept 20 II], lv denied 17 NY3d 818 [20 11 ]). At the CPL 440 hearing, defendant confirmed that at some point before trial he believed that he was facing a maximum indeterminate sentence of 11 1/3 to 34 years (A27). With that belief in mind, defendant confinned that he "thought [a sentence of] eighteen [years] was too high" and even believing that he faced 34 years of exposure, explained the most he would have been willing to accept within those parameters was an indeterminate sentence of 4 to 12 years (A29). This was less than half of the maximum sentence that he believed he faced at that time. Defendant further testified that before the trial, he spoke to his attorney and determined that the "best chance for the lowest that I would get" is if he could obtain a conviction "for negligent homicide" (A27). Defendant believed if he went to trial and was convicted of this lesser count, there was the possibility he could receive an indeterminate sentence of 2 2/3 to 8 years (A28-A29). Given defendant's verbiage at the hearing that "when [he] told him what I was looking for" {referring to speaking to his attorney) "he said the only way you can receive something was to go to trial for negligent homicide" (A28), a sentence of 2 2/3 to 8 years appeared to be defendant's goal. 17 Despite bearing the burden, defendant never submitted an affidavit or testified at the hearing to "provide a definitive statement as to what sentence he would have accepted" (People v Thomson, 46 AD3d 939, 941 [3d Dept 2007], lv denied 9 NY3d 1039 [2008]). Given that defendant's goal appeared to be an indeterminate sentence of 2 2/3 to 8 years, he provided absolutely no support to show that even if a plea bargain was offered, it would have been offered anywhere in or near that sentencing range. The "general rule" of this Court's review requires "that questions of reasonableness must necessarily tum on the facts in each individual case and that the determination of the lower courts on such points is not to be set aside if it is supported by the record" (People v Harrison, 57 NY2d 470,479 [1982] [internal quotations and citations omitted]; see People v Hernandez, 22 NY3d 972,975 [2013]). Thus, as the Appellate Division unanimously determined, defendant failed to establish that he was deprived of a plea bargain acceptable to him as the result of his attorney's error and this determination is soundly supported by the record. iii. Defendant impermissibly seeks to reap a windfall Given that defendant has sought relief by way of a motion to vacate the judgment, he is not entitled to the relief he seeks. Vacatur and remittal for new trial is not an appropriate remedy even if defendant had met his burden and his claim 18 were meritorious. In his request for relief, defendant now asks this Court to reverse the decision of the Appellate Division "and the judgment of conviction should be vacated" (Appellant Brief at 31). While the People firmly maintain that defendant is not entitled to any relief, this request would impermissibly grant defendant a windfall. In Lafler v Cooper, the U.S. Supreme Court recognized that "if a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence" the "remedy must neutralize the taint of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution" (Lafler, 132 S Ct at 1389). Thus, the U.S. Supreme Court determined "[t]he correct remedy in these circumstances .. . is to order the State to reoffer the plea agreement" (id. at 1391; see People v Maldonado, 116 AD3d 980, 981 [2d Dept 2014], on remand 130 AD3d 1070 [2d Dept 2015]). Given that there was never a plea offer extended, there is no plea agreement to reopen. Further, defendant purposefully withheld this claim from Judge Connell at sentencing when it could have been addressed. Now, however, Judge Connell along with defendant's attorney have been deceased for over five years. In any event, here "[t]he Sixth Amendment violation, if any, accordingly provides no 19 justification for interfering with the criminal proceedings against [defendant]" (United States v Morrison, 449 US 361, 366-367 [1981]). 20 POINT III Defendant has no constitutional right a plea offer. As this Court has recognized, "no constitutional right to a plea bargain exists" (People v Adams, 20 NY3d 608, 613 [2013]). Yet, defendant contends that the Appellate Division's decision "reflect[ed] an inadequate concern for a criminal defendant's constitutional right to attempt to negotiate either a plea offer or a sentence commitment" (Appellant Brief at 26). Defendant's reliance on Mask v McGinnis (233 F 3d 132 [2d Cir 2000]) is misplaced. First and foremost, Mask held that an allegation of ineffective assistance in plea negotiations does not "require an evaluation of whether the court would have accepted a different plea agreement" (id. at 142). This holding has been ~xplicitly abrogated by the holdings of the U.S. Supreme Court in Missouri v Frye and Lafler v Cooper. Even assuming, arguendo, that the holding in Mask had not been abrogated, it is the factual opposite of this case. In Mask "all parties including the Court" shared the mistaken belief that defendant Mask was mandatorily a persistent violent felony offender for the purposes of sentencing (id. at 140). This resulted in the prosecutor extending an offer to defendant Mask that was higher than the offer she said she would have made if she was not constrained by the law (id. at 136). 21 Further, defendant Mask averred he would have accepted the lower offer that would have been extended if not for the prosecutor's mistaken belief (id.). By contrast, here, the trial prosecutor was keenly aware of the correct sentence and given defendant's egregious actions and the strength of the case maintained throughout that she "would seek the maximum" (A54, seeS 11). Further, in issuing the correct legal sentence, Judge Connell also expressed that defendant's criminal actions "call for the maximum, more than the maximum" (820). Lastly, defendant, who appeared to be seeking an offer in the range of 2 2/3 to 8 years, never met his burden to show what, if any, reduced offer he would have accepted (A29). United States v Williams (372 F 3d 96 [2d Cir 2004 ]), also cited by defendant, in addition to involving a conflict of interest not present here, contemplates a case where the maximum sentence carried a term of life. Here, both the prosecution and Judge Connell strongly expressed that they felt the statutory maximum sentence was wholly inadequate to address defendant's criminal actions that took the lives of two young men and critically injured a young woman. The assertion in Williams that the U.S. Government was seeking the maximum term of life on multiple counts appeared implausible to the Second Circuit (id. at I 07). Here, the fact that no plea reduction was offered to defendant before trial was logical given the egregious circumstances, overwhelming proof, senseless loss of 22 life, and statutorily limited sentencing range. All of these facts were available to all of the parties before the trial commenced. 23 POINT IV County Court did not abuse its discretion in sustaining objections to improper questions at the hearing. At the CPL 440 hearing, defendant attempted to meet his burden of proving that the late Honorable John J. Connell would have undercut the People by offering his own plea bargain to defendant. In attempting to meet this burden, defendant called Assistant Public Defender Elizabeth Riley as a witness. Defendant now contends that the court abused its discretion by limiting certain questions posed to Ms. Riley (Appellant Brief at 30). "As a general rule, the trial court is granted broad discretion in making evidentiary rulings precluding or admitting such evidence and, absent an abuse of discretion, a trial court's decision should not be disturbed on appeal" (People v Aska, 91 NY2d 979, 981 [ 1998]). Here, there was no abuse of discretion. Ms. Riley had practiced in Monroe County Court for approximately four years at the time Judge Connell's death (A38; Obituary of John J. Connell, Rochester Democrat and Chronicle, May 17-22, 2010). When asked, however, if there were times she was required to negotiate directly with Judge Connell after the People extended no offer, Ms. Riley responded "I'm sure that there were but I can't say specifically with that specific Judge" (A42). Additionally, Ms. Riley admitted that during the course of her career, she 24 had handled only "[o]ne case that involved a vehicular homicide" and that case went to trial before Judge Randall in Monroe County Court (A43-A45, A47). When defendant attempted to elicit addition information about the plea bargaining process for that specific case, the court sustained the People's objection (A45- A48). The court properly sustained the People's objection, noting defense counsel was "asking the witness to describe a situation in a different case years later with a different judge" (A45). Recognizing that what other judges did in other types of cases had no bearing on what Judge Connell would have done in this specific case, the court properly limited the questioning. Indeed, given that Judge Randall presided over the vehicular homicide case that Ms. Riley handled, he could have taken judicial notice of his own actions. Judge Randall, however, recognized the disparate facts of the two cases and the fact that inserting his judgment on another case would not have restored "the circumstances that would have existed" (United States v Carmichael, 216 F 3d 224, 227 [2d Cir 2000]). To assume Judge Connell would have made any concession in this high- profile case with a uniquely egregious set of facts would call for sheer speculation. Had Ms. Riley handled similar vehicular crimes before Judge Connell and engaged in plea bargaining with him, that testimony might have been probative. This, 25 however, was not the case. Further, although defendant cites to Ms. Riley's testimony that she has "never been refused some concession" (Appellant Brief at 30; see A41-A42), that response was given to a question that was sustained and is thus not properly before this Court. What other judges may have done in unrelated, factually dissimilar cases, was not relevant to this hearing. Thus, the CPL 440 court acted appropriately and within its discretion when it declined to pennit Ms. Riley to describe her disparate experiences with other judges on other types of cases that were "too remote and speculative to provide any bearing on the real issue" (People v Ragland, 240 AD2d 598, 598 [2d Dept 1997], lv denied 90 NY2d 1013 [1997], 91 NY2d 929 [ 1998]). 26 CONCLUSION The memorandum and order of the Appellate Division should be affirmed. Dated: October 7, 2015 27 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- HERMAN BANK, Defendant-Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL LAURIE MASTROCOLA, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 7th day of October, 2015, deponent served three (3) copies of the Brief for Respondent and Supplemental Appendix upon Robert N. Isseks, Esq., attorney for Defendant-Appellant in this action at Six North Street, Middletown, New York 10940, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 7th day of October, 2015 tv~~tMJ2 LAURIE MASTROCOLA d~NE T. HELLER 'OTARV PUBLIC. State ol Nl~onr01: 'Commission Expires Cb} ~ 19 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- HERMAN BANK, Defendant -Appellant. PDF CERTIFICATION I, LEAH R. MERVINE, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: October 7, 2015 EAH R. MERVINE, ESQ.
