The People, Respondent,v.Phillip Couser, Appellant. (Appeal No. 2.)BriefN.Y.October 14, 2016 To Be Argued By: James A. Hobbs Time Requested: 15 Minutes APL-2015-00178 APL-2015-00179 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PHILLIP COUSER, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4213 Fax: (585) 753-4234 Date Completed: August 27, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i-iv QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 3 FACTS 6 ARGUMENT 14 Point I: Consecutive Sentencing Was Not Authorized For The Robbery And Attempted Robbery Crimes. 14 Point II: Mr. Couser’s Alford Plea To Attempted Murder Must Be Vacated Because He Received Ineffective Assistance Of Counsel At The Plea Stage. 26 Point III: Mr. Couser’s Alford Plea Should Be Vacated Because The Record Does Not Show That It Was The Product Of A Knowing, Voluntary, And Intelligent Choice. 39 CONCLUSION 45 i TABLE OF AUTHORITIES Federal Cases Cullen v United States, 194 F3d 401 (2d Cir 1999) ....................................................................... 28, 35 Hill v Lockhart, 474 US 52 (1985) ........................................................................................... 27 Hinton v Alabama, 134 S Ct 1081 (2014) ...................................................................................... 35 Kovacs v United States, 744 F3d 44 (2d Cir 2014) ............................................................................... 28 North Carolina v Alford, 400 US 25 (1970) ........................................................................................... 42 Padilla v Kentucky, 559 US 356 (2010) ......................................................................................... 28 Shiwlochan v Portuondo, 150 F Appx 58 (2d Cir 2005) ......................................................................... 28 Shiwlochan v Portuondo, 345 F Supp 2d 242 (ED NY 2004) ................................................................. 28 United States v Gordon, 156 F3d 376 (2d Cir 1998) ................................................................. 27, 28, 35 State Cases People v Bate, 83 AD3d 1110 (3d Dept 2011) ....................................................................... 42 People v Battles, 16 NY3d 54 (2010) ....................................................................... 14, 15, 23, 40 People v Catone, 65 NY2d 1003 (1985) ...................................................................................... 20 People v Cherry, 46 AD3d 1234 (3d Dept 2007) ................................................................. 31, 41 ii People v Couser, 126 AD3d 1419 (4th Dept 2015) .................................................................... 18 People v Davis, 12 AD3d 237 (1st Dept 2004) ......................................................................... 23 People v Davis, 68 AD3d 1653 (4th Dept 2009) ...................................................................... 31 People v Dean, 8 NY3d 929 (2007) ................................................................................... 15, 16 People v Dekenipp, 105 AD3d 1346 (4th Dept 2013) .............................................................. 21, 22 People v Faulkner, 36 AD3d 951 (3d Dept 2007) ......................................................................... 31 People v Ford, 86 NY2d 397 (1995) ....................................................................................... 27 People v Grant, 96 AD2d 867 (2d Dept 1983) ......................................................................... 22 People v Grant, 23 AD3d 172 (1st Dept 2005) ......................................................................... 23 People v Hawkins, 94 AD3d 1439 (4th Dept 2012) ...................................................................... 27 People v Hill, 9 NY3d 189 (2007) ......................................................................................... 39 People v Hyde, 240 AD2d 849 (3d Dept 1997) ................................................................. 22, 23 People v Jackson, 41 AD3d 1268 (4th Dept 2007) ...................................................................... 32 People v Jimenez, 110 AD3d 740 (3d Dept 2013) ....................................................................... 42 People v Kirkwood, 165 AD2d 881 (2d Dept 1990) ....................................................................... 23 iii People v Laureano, 87 NY2d 640 (1996) ................................................... 14, 15, 16, 19, 20, 21, 24 People v Legault, 180 AD2d 912 (3d Dept 1992) ....................................................................... 42 People v Lemon, 38 AD3d 1298 (4th Dept 2007) ...................................................................... 21 People v Lopez, 71 NY2d 662 (1988) ................................................................................. 39, 40 People v Louree, 8 NY3d 541 (2007) ......................................................................................... 43 People v McDonald, 1 NY3d 109 (2003) ................................................................................... 27, 37 People v Middleton, 32 AD3d 557 (3d Dept 2006) ....................................................... 30, 31, 33, 41 People v Miller, 6 NY3d 295 (2006) ................................................................................... 29, 30 People v Mox, 20 NY3d 936 (2012) ................................................................................. 39, 42 People v Nelson, 36 AD3d 532 (1st Dept 2007) ......................................................................... 23 People v Ojo, 43 AD3d 1367 (4th Dept 2007) ...................................................................... 32 People v Parks, 95 NY2d 811 (2000) ..................................................................... 30, 31, 33, 41 People v Peque, 22 NY3d 168 (2013) ................................................................................. 43, 44 People v Picca, 97 AD3d 170 (2d Dept 2012) ................................................................... 28, 37 People v Ramirez, 89 NY2d 444 (1996) ........................................................................... 14, 23, 25 iv People v Rodriguez, 25 NY3d 238 (2015) ..................................................................... 15, 16, 18, 19 People v Rosas, 8 NY3d 493 (2007) ................................................................................... 32, 41 People v Serrano, 15 NY2d 304 (1965) ................................................................................. 40, 42 People v Smiley, 121 AD2d 274 (1st Dept 1986) ....................................................................... 22 People v White, 67 AD3d 933 (2d Dept 2009) ......................................................................... 27 People v Yong Yun Lee, 92 NY2d 987 (1998) ....................................................................................... 25 Silmon v Travis, 95 NY2d 470 (2000) ................................................................................. 39, 40 State Statutes Criminal Procedure Law 1.20 (37) ....................................................................... 16 Penal Law § 70.00 .......................................................................................... 30, 36 Penal Law § 70.02 ................................................................................................ 30 Penal Law § 70.25 (2) ............................... 14, 18, 20, 21, 24, 26, 29, 30, 31, 34, 41 Penal Law § 110.05 .............................................................................................. 30 Penal Law § 125.27 (1) (a) (vii) ..................................................................... 29, 31 Penal Law § 125.27 (1) (a) (viii) ........................................................................... 32 Penal Law § 160.00 .............................................................................................. 25 Penal Law § 160.15 (4) ............................................................................ 15, 16, 25 Constitution NY Const art I, § 6 ............................................................................................... 39 1 QUESTIONS PRESENTED 1. Were consecutive sentences authorized by Penal Law § 70.25(2) with respect to the robbery charge and the three attempted robbery charges, where the evidence indicated that the actions wholly constituting the attempted robberies also constituted two material elements of the completed robbery? Answer below: The Appellate Division held that consecutive sentences were authorized because the completed robbery involved the “additional act” of taking property. 2. Did the defendant receive effective assistance of counsel with respect to his post-trial Alford plea to attempted intentional felony murder pursuant to Penal Law § 125.27(1)(a)(vii), where the record shows that his plea was motivated by defense counsel’s advice that the sentence after trial could be consecutive? Answer below: The Appellate Division held that counsel provided adequate advice because this charge was “not subject to the strictures of Penal Law § 70.25(2)” as it involved the “separate and distinct act” of shooting a victim, notwithstanding the fact that committing or attempting to commit a robbery is an essential element of this crime. 3. Does the record show that Mr. Couser’s Alford plea to Count One was a voluntary and intelligent decision, where the plea colloquy reflects defense counsel’s inaccurate advice regarding the risks of a consecutive sentence and 2 where the court failed to inquire to ensure that Mr. Couser properly understood the benefits of the plea and the risks of trial? Answer below: The Appellate Division summarily rejected Mr. Couser’s argument that the record fails to show that his Alford plea was the product of a knowing, intelligent, and voluntary choice. 3 PRELIMINARY STATEMENT On August 16, 2008, a robbery and shooting occurred at a park in Rochester. A group of five people was confronted by a young man with a pistol. They were ordered to the ground; a purse was taken; a shot was fired; and the assailant fled. The gunshot resulted in a graze wound to the back of the head of one of the victims. Months later, the appellant, Phillip Couser, was indicted by a Monroe County Grand Jury. Mr. Couser was charged with one count of attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a][vii]), one count of robbery in the first degree (Penal Law § 160.15[4]), three counts of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4]), and two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b], [3]). The indictment also included an eighth count for possession of a different pistol found in his home on November 25, 2008, the date of his arrest (Penal Law § 265.02[1]). A jury trial was held in Supreme Court (Kehoe, J.). The jury found Mr. Couser guilty of seven of the eight charges, but it deadlocked on Count One, the attempted murder charge. With the consent of the parties, the court accepted the partial verdict, and it imposed consecutive sentences on each of the robbery and attempted robbery charges, resulting in a cumulative term of 48 years in custody followed by 5 years under supervision. 4 With Count One still pending, the case was transferred to a different justice (Affronti, J.) for a new trial or a plea. Mr. Couser maintained that the shooting was caused by a sensitive trigger, and he refused to enter a plea that involved admitting that he intended to shoot or kill. However, based on trial counsel’s advice that he could face an additional consecutive sentence on this charge, Mr. Couser entered an Alford plea in order to receive a concurrent sentence of 15 years to life. Notices of appeal were filed after each of the two sentencing dates, resulting in the docketing of two appeals. The appeals were consolidated for argument by the Appellate Division, Fourth Department. On March 20, 2015, the Appellate Division issued two decisions resolving the appeals. With respect to the trial convictions, the Appellate Division affirmed but modified the sentence. The Appellate Division accepted Mr. Couser’s argument that the sentences for the three attempted robbery counts (Counts Five, Six, and Seven) were required to run concurrently, but rejected his further contention that these sentences must also run concurrent to the sentence on the robbery charge (Count Two). The result was a 15-year reduction in the determinate portion of Mr. Couser’s sentence, from 48 years to 33 years. With respect to the post-trial Alford plea, the Appellate Division affirmed, rejecting Mr. Couser’s arguments that the plea should be vacated. On June 24, 2015, the Honorable Leslie E. Stein granted leave to appeal 5 from both of the Appellate Division orders. The issues relating to both appeals are addressed in this brief based upon the single appendix filed by the Appellant. 6 FACTS The indictment in this case charges Mr. Couser with, among other things, one count of robbery, three counts of attempted robbery, and an attempt to commit first degree murder as defined in Penal Law § 125.27(1)(a)(vii). This particular subsection addresses intentional homicide when it occurs in the course of committing or attempting to commit certain other specified crimes or in furtherance of flight therefrom. Tracking the language of the statute, the indictment alleges that Mr. Couser attempted to cause the death of Mark Lewis “in the course of committing or attempting to commit and in furtherance of a robbery, or of immediate flight therefrom” (Appendix [hereinafter “A.__”] at 17.) The indictment does not specify that any particular one of the robbery or attempted robbery charges (Counts Two, Five, Six, and Seven) is intended to satisfy this element of the crime. After a hearing and pre-trial practice, Supreme Court held a jury trial beginning on January 20, 2010. For the charges related to the August 16, 2008 robbery, the People presented the testimony of four of the five victims: Mr. Lewis, Ms. Salonen, Ms. Belknap, and Mr. Fischer. There was no charge relating to the fifth victim, and he did not appear as a witness at any point. With some differences in detail, the four victims each testified that they had gone to Maplewood Park in the early evening to see the Lower Falls of the Genesee River, 7 and while walking out of the gorge, they were confronted at gunpoint by Mr. Couser. They testified that Mr. Couser had been with a group of people, that his group passed theirs, and that he turned around, displayed a pistol by pointing it at the group and waving it around, and told them all to get on the ground. (See A.89, A.116-17, A.132-33, A.151-52.) The testimony indicated that the victims complied. Ms. Belknap testified that as she got down on the ground, she placed her purse on the ground beside her. (A.134, A.145.) Mr. Couser kicked her purse toward an unidentified accomplice and directed him to take it. (A.133-34, A.145-46.) There was testimony that Mr. Lewis had held out his arm offering up his gold Rolex watch (A.134), but only Ms. Belknap’s purse and its contents were taken (A.92, A.118-19, A.136). The testimony indicated that after the purse was taken, Mr. Couser placed the gun at or near the back of Mr. Lewis’s head (A.89-90, A.117, A.133, A.145-46, A.153). Not all of the witnesses could see what happened next, but all agreed that a shot was fired, resulting in what a doctor later testified was a “graze wound” along the back of Mr. Lewis’s head (A.266). Ms. Belknap testified that after the gunshot, Mr. Couser threatened the group, saying that if anybody moved or said anything, he would kill them all, and then he walked away. (A.133, A.135, A.146.) Ms. Salonen testified that after the shot, Mr. Couser did not say anything; he just ran. (A.119.) Mr. Lewis was taken to the hospital and discharged that 8 night with one staple to close the wound. (A.266-67.) Through a police witness and evidence technician, the People introduced the .357 Rossi revolver that was found near the scene of the crime. (A.167-68, A.172, A.216-17.) When it was found, it was loaded with four or five live rounds and one spent shell casing. (A.217, A.254-55.) The victims testified that it looked like the gun that Mr. Couser had used. (A.93, A.120, A.136, A.157-58.) Through the testimony of Investigator Hill, the People introduced Mr. Couser’s statement admitting that he had been at the park on the night in question, that he had taken Ecstasy for the first time, that he had a .357 handgun, and that he “pulled out the gun and pointed it at everyone” (A.28, A.199, A.193-201). Mr. Couser’s statement included his claim that the gun “went off by accident” because the trigger was “very sensitive” (id.). He claimed that he waited a moment to make sure the victim was alright and then he fled, tossing the gun in the bushes. (A.28- 29.) Regarding Count 8, the charge based on a different pistol found in Mr. Couser’s home, the People introduced testimony of the police officer and the evidence technician who recovered the gun (A.224-33), the gun itself (A.233), and Mr. Couser’s statement admitting possession of that gun (A.187-92). Finally, the People’s firearms examiner testified that he had examined both guns and found them to be operable (A.242-50). Supporting Mr. Couser’s claim of 9 a sensitive trigger, the examiner testified that the pistol found in the house in November required 10.5 pounds of force on the trigger to fire (A.254); the Rossi revolver involved in the shooting required 5.25 pounds when not cocked (A.239); but when cocked, the Rossi revolver would fire with only 1.75 pounds of force (A.239). Mr. Couser testified in his own defense. (A.275-336.) He elaborated on his statement that the shooting was an accident caused by a hair trigger, and he explained that he was under the influence of alcohol and Ecstasy at the time of the robbery. The People’s closing statement, like their opening statement, did nothing to indicate that any one of the robbery or attempted robbery charges was linked to Count One. The People did, at a couple of points, allege that Mr. Couser had intentionally shot Mr. Lewis “during the course of a robbery.” (A.380; see A.379.) But the remainder of the People’s comments indicated that they were generally using the term “robbery” to describe the entire incident, including the robbery and the attempted robberies. (See A.379-80 [“He decided to rob them. . . . [I]n that moment in time, it was his conscious objective or purpose to pull that trigger with the barrel of that gun to Mr. Lewis’s head during the course of that robbery.”]; A.361-62 [“the credible proof shows that this was a robbery”]; see also A.69 [“The proof will show that this was a robbery of all four victims.”].) 10 The court instructed the jury that the type of attempted first degree murder at issue here would require an attempt to kill “while the Defendant was in the course of committing, or attempting to commit, and in furtherance of a robbery” (A.405- 07). The court’s instructions did not link Count One with any one of the robbery or attempted robbery charges in particular and did not limit the jury’s consideration in this regard. During deliberations, the jury requested re-reads of the evidence and the instructions related to the attempted murder charge. On the second day, the jury sent out a note indicating that it had reached a verdict on Counts Two through Eight, but could not reach agreement on Count One. (A.434.) Defense counsel requested that the court accept a partial verdict and declare a hung jury on Count One. (A.434, A.439-40.) After Mr. Couser signed a consent expressing that he understood that he could be retried on Count One, the court accepted the partial verdict finding Mr. Couser guilty on Counts Two through Eight. (A.439-51.) With Count One still pending, the court held sentencing on Counts Two through Eight. The People requested a maximum sentence on each count, with consecutive sentences on the robbery and attempted robbery charges. (A.454-60.) The People argued specifically that consecutive sentences were legally authorized. (A.455-60.) Defense counsel did not challenge this premise and, in fact, said nothing about whether the court could or should impose consecutive or concurrent 11 sentences. (See A.460-62.) The court imposed consecutive sentences on the robbery and attempted robbery charges: 18 years on Count Two (robbery of Ms. Belknap); 15 years on Count Five (attempted robbery of Mr. Lewis); 10 years on Count Six (attempted robbery of Ms. Salonen); and 5 years on Count Seven (attempted robbery of Mr. Fischer). The court imposed lesser concurrent sentences on the weapons possession charges, resulting in a total sentence of 48 years plus 5 years of post- release supervision. (A.464-72.) After the sentencing on Counts Two through Eight, counsel and the court attempted to negotiate a plea to Count One. However, Mr. Couser remained unwilling to admit that he had intended to kill Mr. Lewis, and the matter was set for trial. (A.482-83.) A month later, defense counsel explained on the record that he had advised Mr. Couser that by going back to trial on Count One, he would risk an additional consecutive sentence, and that based on this advice, Mr. Couser was willing to enter an Alford plea in order to ensure a concurrent sentence of 15 years to life. (A.488-90.) The court indicated that it would accept the Alford plea only because of the previously imposed 48-year sentence. (A.491-93, A.497-98.) Following the plea, in which Mr. Couser did not provide any allocution and the court asked no questions of Mr. Couser to ensure that he was making a free and knowing decision, 12 Mr. Couser was sentenced as promised. (A.500-01.) In consolidated appeals, Mr. Couser appealed from his convictions after trial and his conviction by Alford plea. With respect to the convictions on Counts Two through Eight, Mr. Couser argued that he had received ineffective assistance of counsel at trial and that the court had admitted improper Molineux evidence. The Appellate Division rejected these arguments. (A.8-9.) With respect to the sentences, Mr. Couser argued that concurrent sentencing was mandatory for the robbery and the three attempted robbery charges and that the 48 year sentence had to be reduced to 18 years. The Appellate Division accepted this argument in part, holding that the concurrent sentences were required for the three attempted robberies, but that the sentence for these attempted robberies could run consecutive to the sentence for the completed robbery. (A.9-10.) The Appellate Division reasoned that consecutive sentencing was permitted because the completed robbery involved the additional act of taking property. (Id.) The Appellate Division affirmed the convictions but reduced the sentence to 33 years. With respect to Count One, Mr. Couser argued that he received ineffective assistance of counsel at the plea stage and that his Alford plea should be vacated. On appeal, Mr. Couser contended that counsel’s advice regarding the risk of consecutive sentencing was erroneous because the robbery and attempted robbery charges were an essential element of this attempted murder charge and, therefore, 13 the sentence on this count had to be concurrent. In addition, Mr. Couser contended that counsel’s plea advice, put on the record at his plea, raised a significant question as to whether his decision to plead was a knowing and voluntary act and thus triggered a duty to inquire by the court. He also argued that the 48-year sentence on Counts Two through Eight was an essential factor in his decision to plead to Count One, and that the reduction in that sentence required that he be permitted to withdraw his plea. The Appellate Division rejected all three of these arguments and affirmed the conviction and sentence. (A.10-11.) 14 ARGUMENT Point I: Consecutive Sentencing Was Not Authorized For The Robbery And Attempted Robbery Crimes. The sentencing court erred by imposing consecutive sentences on the four counts charging robbery and attempted robbery. Under Penal Law § 70.25(2), concurrent sentencing was mandatory. The Appellate Division only partially corrected the problem. It modified the sentences for the three attempted robbery charges (Counts Five, Six, and Seven), but it erroneously held that the resulting 15- year sentence for these three charges could run consecutively to the 18-year sentence for robbery (Count Two). As a result, the sentence on these counts remains illegal and requires further correction. Penal Law § 70.25(2) provides that concurrent sentences are required 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 . . . .” Under this provision, there are two categories of cases in which consecutive sentencing is prohibited: “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other.” (People v Laureano, 87 NY2d 640, 643 [1996]; see People v Battles, 16 NY3d 54, 58 [2010]; People v Ramirez, 89 NY2d 444, 451 [1996].) The first of these two categories covers the three attempted robberies, and the second category covers the 15 attempted robberies and the completed robbery. “To determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” (Battles, 16 NY3d at 58; see also People v Rodriguez, 25 NY3d 238, 244 [2015]; Laureano, 87 NY2d at 643). “[T]he court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute) or if the actus reus element is, by definition a material element of the second offense (under the second prong)” (Laureano, 87 NY2d at 643). If the statutory elements overlap in one of these ways, then consecutive sentences are only permitted if the People show that the “acts or omissions committed by the defendant were separate and distinct acts” (id.; see Rodriguez, 25 NY3d at 244). If the People do not affirmatively demonstrate that the crimes were committed through distinct acts, then “the court [is] without authority to impose consecutive sentences” (People v Dean, 8 NY3d 929, 931 [2007]). In this case, the statutory elements are, by definition, identical or overlapping for the robbery and attempted robbery crimes. Counts Five, Six, and Seven all charge attempted first degree robbery under Penal Law § 160.15 (4), and Count Two charges a completed first degree robbery under this same subsection. Under this subsection, a person commits robbery in the first degree if he “forcibly steals property and . . . in the commission of the crime or immediate flight 16 therefrom, . . . [d]isplays what appears to be a pistol, revolver, . . . or other firearm . . .” (Penal Law § 160.15[4]). Count Two requires the completion of this actus reus, while Counts Five, Six, and Seven require conduct coming dangerously close to its completion. As a matter of law, it is impossible to commit robbery under Penal Law § 165.15(4) without also committing attempted robbery under that same provision. (See CPL 1.20[37].) Thus, the acts constituting attempted robbery under this provision can also constitute one or more of the material elements of a completed robbery under this same provision. (See Laureano, 87 NY2d at 644.) Because the actus reus of these crimes is identical or overlapping with respect to Counts Two, Five, Six, and Seven, the People had to show that Mr. Couser committed the crimes through distinct acts. (See Rodriguez, 25 NY3d at 244; Laureano, 87 NY2d at 643; Dean, 8 NY3d at 931.) The People cannot sustain this burden. The trial evidence shows that the robbery and the three attempted robberies all began through the same indistinguishable, group-directed acts. The four victims each testified that the incident began when Mr. Couser turned to face them, displayed a gun to their group, and issued commands directed at all of them. (See e.g. A.88 [He “told us all to get down”]; A.105 [He pointed the gun at the “group” and “said for everybody to get down”]; A.116 [“He said, everyone get down, or I will kill all of you,” with the gun “pointing at us”]; A.117 [“Pointing it at us, 17 telling us that he would kill us all, if we didn’t get down”; the gun was pointed at “all of us”]; A.133 [He “waved [the gun] around, told us that he wasn’t playing”]; A.151 [“he pulled a gun on us”]; A.152 [He “[w]aved it around at all of us”].) Accordingly, at trial and sentencing, the prosecutor described Mr. Couser’s actions as group-directed. (See e.g. A.69 [Mr. Couser “accosts this group”; says “get down, or I will kill you all”; and he “ordered them” to get to the ground]; A.358 [“He ordered them to get down.”]; A.358 [He was “waiving [sic] this gun around at all five of them”]; A.456 [“he then pointed the gun at the entire group, not just Mr. Lewis, not just Mr. Fischer”].) Thus, the testimony and the prosecutor’s characterization of it all indicated that Mr. Couser used group-directed commands and a single, indistinguishable display of a pistol to initiate what the People tellingly described as “a robbery of all four victims” (A.69 [emphasis added]). Next, the testimony indicated that in compliance with these group-directed acts, the victims all began to get down on the ground. In the process of doing so, Ms. Belknap relinquished her purse, placing it on the ground beside her. (A.134, A.145; see A.358 [“Julie tossed her purse to the side.”]) The robbery of Ms. Belknap was completed when Mr. Couser kicked the purse toward a companion and directed him to take the purse. (A.133, A.145-46.) The testimony indicated that, after the purse was taken, Mr. Lewis was shot – although there was no jury finding regarding this shooting – and then Mr. Couser fled. (A.117, A.133, A.145- 18 46, A.153.) Reviewing this evidence, the Appellate Division correctly recognized that the acts constituting the three attempted robberies – the display of the pistol and the commands – were all the same indistinguishable, group-directed acts. It held that the “actus reus of the fifth through seventh counts was a single act constituting one offense, and thus the sentences on those counts must run concurrently with each other.” (A.9; People v Couser, 126 AD3d 1419, 1421 [4th Dept 2015].)1 However, the Appellate Division rejected Mr. Couser’s further argument that the sentence for the robbery charge (Count Two) must also run concurrent to the attempted robbery charges. The court held that a consecutive sentence was authorized because the robbery “included an additional act, i.e., the taking of the purse, which allowed the court to impose a consecutive sentence thereon.” (Id. at 1422.) In this respect, the Appellate Division erred. Although the robbery crime involved the additional act of taking Ms. Belknap’s purse, this does not authorize a consecutive sentence under Penal Law § 70.25(2). Under the second prong of Penal Law § 70.25(2), sentences must be 1 Notably, in reaching this holding, the Appellate Division did not treat the shooting of Mr. Lewis as a part of any of the robberies or attempted robberies, but instead it held that it was a separate and additional act comprising a part of the attempted murder charge (see People v Couser, 126 AD3d at 1422 [“the shooting of the male victim was an act separate and distinct from the criminal acts in appeal No. 1” i.e., the robbery and attempted robbery crimes]). This treatment of the shooting is supported by the fact that it occurred after the robbery was complete (A.117, A.133, A.145-46, A.153) and was apparently unnecessary to any of the robbery or attempted robbery crimes (see A.89-90, A.134; People v Rodriguez, 25 NY3d at 244-45). Moreover, at the time of sentencing, there had been no finding that the shooting was an intentional act – the jury had hung on the only count requiring that determination – and there has been no subsequent admission to that effect. Finally, it also bears noting that if the shooting were considered to be a part of any of the robbery or attempted robbery crimes, this would add additional support to the arguments in points II and III below that the sentence on Count One would need to be concurrent. 19 concurrent if the acts constituting one crime also constitute a material element of the other. What matters under this second prong is that “the bodily movement or failure to act that constitutes the offense,” i.e., the attempted robberies, also constitutes a material element of the other offense, i.e. the robbery. (See Laureano, 87 NY2d at 644.) Here, that requirement is satisfied. The acts that constituted the entirety of the attempted robbery crimes – the group-directed display of a firearm and the group-directed threats and commands – are the very same acts that constituted two material elements of the robbery of Ms. Belknap: the display of a firearm element and the threat or use of force element. In connection with the robbery of Ms. Belknap, there was no evidence of any separate use of force or any separate display of a firearm that could comprise these two material elements. Instead, the trial evidence showed that Ms. Belknap got down on the ground and relinquished her purse in response to the very same acts that constituted the attempted robberies. (See A.134, A.145, A.358.) Any resistance she might have had to the taking was overcome by these group directed acts. (See A.134.) No further force was necessary to accomplish the taking (see Rodriguez, 25 NY3d at 244-245), and no further force was used to do so. Instead, the robbery was completed when Mr. Couser kicked her purse toward a companion and told him to take it. (A.133, A.145-46.) This taking was not a separate or additional act of force against Ms. Belknap. Instead, it was merely asportation, 20 i.e., the movement of her property. Thus, the “act or omission which in itself constituted [the attempted robberies] also was [two] material element[s] of the [robbery]” (Penal Law § 70.25[2]), and concurrent sentences are required. The Fourth Department’s approach here – according to which consecutive sentences were permitted simply because the robbery involved this “additional act” – has no basis in the text of Penal Law § 70.25(2), and it cannot be squared with the case law applying it. The second prong of that subsection applies to cases in which “a single act constitutes one of the offenses and a material element of the other” (Laureano, 87 NY2d at 643). Because this second prong covers cases where the elements of the crimes only partially overlap, one of the two crimes will very often, if not always, involve some “additional act.” There are numerous cases in which the courts have recognized that concurrent sentencing is required under the second prong of Penal Law § 70.25(2) even though one of the two crimes involved an additional act. (See e.g. People v Catone, 65 NY2d 1003, 1005 [1985].) In many of those cases, that additional act is the act of taking property to complete a robbery. For example, in People v Laureano, concurrent sentences were required for robbery and manslaughter because the act constituting the “serious physical injury” element of the robbery (cutting the victim’s throat) also constituted the manslaughter crime (87 NY2d at 644-45). This Court explained that what mattered for purposes of Penal Law 21 § 70.25(2) was whether “the bodily movement or failure to act that constitutes the [manslaughter] offense” also constitutes the material element of the robbery offense. (Id. at 644.) And it held “the People have advanced no facts supporting the view that Zabel’s serious physical injury [an element of the robbery] was caused by an act other than the homicidal act” (id. at 645). Of course, taking property is not an element of manslaughter, and thus, completion of the robbery necessarily involved an “additional act” beyond the act comprising the manslaughter. Likewise, here, the bodily movement that constituted the attempted robberies also constituted two material elements of the completed robbery, and the “additional act” of taking property is inadequate to authorize a consecutive sentence for the robbery conviction. Each branch of the Appellate Division has reached the same result in cases involving a robbery charge. In People v Lemon (38 AD3d 1298 [4th Dept 2007]), the Fourth Department held that concurrent sentences were required for convictions for murder and robbery, even though the robbery necessarily involved the additional act of taking property which was not a part of the murder crimes. (Id. at 1299.) And in People v Dekenipp (105 Ad3d 1346 [4th Dept 2013]), the Appellate Division held that driving a vehicle in such a way as to strike a security guard and car constituted a criminal mischief offense and also constituted the “use of physical force” element for the robbery conviction. Thus, although the robbery 22 certainly involved the “additional act” of taking property, which was no part of the criminal mischief crime, the Fourth Department held that concurrent sentencing was mandatory. (Id. at 1349.) Each of the other departments has reached the same results in multiple cases. (See e.g. People v Hyde, 240 AD2d 849, 852 [3d Dept 1997] [concurrent sentences required where the act of shooting constituted murder and the serious physical injury element of the robbery]; People v Smiley, 121 AD2d 274, 275 [1st Dept 1986] [concurrent sentences required where the act of stabbing constituted an assault crime and the use of a dangerous instrument element of the robbery]; People v Grant, 96 AD2d 867, 868 [2d Dept 1983] [concurrent sentences required where act of shooting the victim constituted assault and attempted murder crimes and a material element of the robbery crimes].) Thus, the Fourth Department’s approach to the present case has no basis in the statute, is contrary to controlling case law, and is contrary to even its own prior decisions. The mere fact that a robbery crime involves an “additional act,” a taking of property, is not, in itself, enough to authorize consecutive sentencing. It might be suggested that, here, the taking was not only an additional act, but an act against a different victim than the attempted robbery crimes. This is also insufficient. First, it does not distinguish the present case from the above referenced cases. In People v Hyde, the victim of the taking was a grocery store, but the victim of the murder was a customer and off-duty police officer who 23 attempted to intervene (240 AD2d at 849). Thus, in Hyde, the additional act of taking property was an act committed against a different victim than the shooting that constituted the murder. Second, as a general matter, the mere fact that crimes involve distinct victims is not sufficient to authorize consecutive sentences. “A court may not impose consecutive sentences for crimes committed through a single act, even against multiple victims” (People v Grant, 23 AD3d 172, 173 [1st Dept 2005]; see Battles, 16 NY3d at 59 [concurrent sentence required with respect to a victim who was doused with gasoline incidentally “as a result of the dousing of the others”]; People v Davis, 12 AD3d 237, 237-38 [1st Dept 2004] [two victims assaulted through a single use of force]; People v Kirkwood, 165 AD2d 881, 882 [2d Dept 1990] [five deaths resulting from a single act]). In Ramirez, the Court of Appeals held that where the defendant obtained property from two victims through a single display of a firearm, concurrent sentences were required (89 NY2d at 453). Similarly, the Appellate Division has held that concurrent sentences were required where two victims handed over property in response to a single command. (People v Nelson, 36 AD3d 532, 533 [1st Dept 2007].) Here, Mr. Couser similarly used a single display of a firearm and a single set of threats and commands, all of which were group-directed acts. The difference between this case and Ramirez and Nelson is that, here, only one victim relinquished property, but that is no basis for a consecutive sentence. What matters 24 under Penal Law § 70.25(2) is not the responsive bodily movements of the victims, but the bodily movements made by the defendant. In a group robbery based on group-directed threats, it would be anomalous if consecutive sentencing depended solely on whether all or only some of the victims relinquished their property in response. Instead of focusing on the fact that the robbery involved an “additional act” – a fact that has no direct bearing on the analysis under the second prong of Penal Law § 70.25(2) – the proper approach focuses on the fact that the attempted robberies were completely subsumed in the completed robbery. There was no part of the attempted robberies which was not also a part of the completed robbery. Thus, by the committing only the acts that made up the completed robbery, Mr. Couser had also committed the attempted robberies. As a result, the terms of the second prong of Penal Law § 70.25(2) are met. The acts constituting the attempted robberies were the very same acts that constituted two material elements of the robbery of Ms. Belknap. (See Penal Law § 70.25[2]; Laureano, 87 NY2d at 643.) Approached this way, it is easy to see that this case would be different if Mr. Couser had, in addition to the acts shown here, made some individualized attempt to rob another one of the victims, such as singling out Ms. Salonen and demanding her purse, feeling Mr. Fischer’s pockets for a wallet, or taking Mr. Lewis’s watch when it was allegedly offered up (A.134). In that case, the crimes against these 25 victims would involve some acts that were not also a part of the completed robbery of Ms. Belknap, thus authorizing consecutive sentencing. (See e.g. People v Yong Yun Lee, 92 NY2d 987, 989 [1998] [holding that consecutive sentences were authorized for robberies of two victims accomplished through separate acts]; Ramirez, 89 NY2d at 453 [concurrent sentences required for robbery of victims accomplished through the same acts, but consecutive sentence permitted for robbery of one victim who attempted to escape and was separately attacked and shot].) But here, there was no act in any of attempted robberies that can be distinguished or separated out from the acts that were essential to the completed robbery. In sum, under the proper analysis, concurrent sentences are required. The bodily acts that constituted the attempted robberies – group-directed commands and group-directed display of a firearm – also constituted two material elements of the completed robbery: the threat of force (see Penal Law § 160.00) and a display of a firearm (see Penal Law § 160.15[4]). There was no proof of any separate act directed at the robbery victim that would satisfy either of these two essential elements. In particular, there was no individualized threat or use of force required to take the purse. Therefore, concurrent sentences were required. 26 Point II: Mr. Couser’s Alford Plea To Attempted Murder Must Be Vacated Because He Received Ineffective Assistance Of Counsel At The Plea Stage. At the first sentencing in this case, on the counts addressed above, defense counsel failed to address the issue of concurrent or consecutive sentencing. Although the People argued specifically and in detail for consecutive sentencing, defense counsel did not say anything about whether Penal Law § 70.25(2) permitted consecutive sentencing (see A.454-62). Thus, counsel was either unaware of or unconcerned with a legal argument that has already reduced Mr. Couser’s sentence by 15 years and that should reduce it by a total of 30 years. This lack of attention to consecutive sentencing principles continued to prejudice Mr. Couser at the next stage of his case. In the months that immediately followed this sentencing, defense counsel had the task of advising Mr. Couser about whether to accept a plea bargain or go back for a second trial on Count One. In doing so, defense counsel failed to recognize that this same statutory provision, Penal Law § 70.25(2), mandated a concurrent sentence on Count One. The record shows that Mr. Couser’s plea to Count One was motivated by counsel’s advice that he could receive an additional consecutive sentence if he went to trial. (A.489-90.) This erroneous advice constitutes ineffective assistance under both the New York and federal constitutions, and it shows that Mr. Couser’s Alford plea was not knowingly and voluntarily entered. Therefore, that plea must be vacated. 27 Under both the federal and state constitutions, “[a] defendant who has not received the effective assistance of counsel in deciding to plead guilty cannot be bound by his plea, since such a plea is not a knowing and intelligent act” (People v White, 67 AD3d 933, 934 [2d Dept 2009], citing Hill v Lockhart, 474 US 52, 56– 59 [1985]). Under federal constitutional law, a defendant must show that counsel’s “representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Hill, 474 US at 57 [quotation omitted]; see also People v McDonald, 1 NY3d 109, 113-14 [2003]). New York constitutional law provides that “[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v Hawkins, 94 AD3d 1439, 1440 [4th Dept 2012] [quoting People v Ford, 86 NY2d 397, 404 [1995]]). With respect to a plea offer, defense counsel must provide the defendant with accurate information about “the comparative sentence exposure between standing trial and accepting a plea offer,” because such information “will often be crucial to the decision whether to plead guilty” (United States v Gordon, 156 F3d 376, 380 [2d Cir 1998]). The failure to provide an accurate comparison of sentence exposure constitutes deficient performance. (See id.; Cullen v United 28 States, 194 F3d 401, 404 [2d Cir 1999] [deficient performance was established by counsel’s “significantly inaccurate calculation of sentencing ranges upon a plea and upon conviction after trial”]; Shiwlochan v Portuondo, 345 F Supp 2d 242, 262 [ED NY 2004] [finding deficient performance where counsel failed to give “an accurate comparison of the maximum sentencing petitioner would have faced upon a guilty plea and after a trial”] affd 150 F Appx 58 [2d Cir 2005]). Indeed, it is established that a failure to provide accurate information regarding the immigration consequences of a guilty plea – a so-called “collateral” consequence – can constitute deficient performance by defense counsel. (See Padilla v Kentucky, 559 US 356, 367-69 [2010]; Kovacs v United States, 744 F3d 44, 50 [2d Cir 2014]; People v Picca, 97 AD3d 170, 180 [2d Dept 2012].) Thus, the provision of materially inaccurate advice regarding sentence exposure – the most “direct” consequence of any conviction – certainly constitutes deficient performance. (See Cullen, 194 F3d at 404; Gordon, 156 F3d at 380). Here, Mr. Couser was persuaded to plead guilty to Count One because counsel advised him that, on top of the 48 years of consecutive sentences that he had already received, he would risk an additional consecutive sentence if he exercised his right to trial on Count One. In particular, counsel told the court: “[Mr. Couser] sees based on our discussions that there is a strong likelihood that if we had a retrial that he would be convicted of the attempted murder charges [sic], and he would not know what the sentence would be and 29 whether it would be concurrent or consecutive. The offer here has been for him to plead to the charge and receive the minimum sentence to run concurrent with the sentence he is serving. And he has indicated to me that he wishes to make the voluntary choice to accept this opportunity to plead and receive this concurrent sentence.” (A.489-90 [emphasis added].) This statement reveals both the advice given by counsel and its importance in inducing Mr. Couser’s Alford plea. Counsel’s sentencing advice was incorrect. Under Penal Law § 70.25(2), any sentence on Count One would have to be concurrent to the sentences for the robbery and attempted robbery crimes charged in Counts Two, Five, Six, and Seven. This should have been apparent to counsel based on established law at the time of sentencing. It is of critical importance that Count One charges Mr. Couser with attempted murder in the first degree under Penal Law § 125.27(1)(a)(vii). Under this particular statutory provision, a homicide is elevated to first degree murder because it occurs “while the defendant was in the course of committing or attempting to commit and in furtherance of robbery . . . or in the course of and furtherance of immediate flight [therefrom] . . .” (Penal Law § 125.27[1][a][vii]). This Court has recognized that this statute creates a form of “intentional felony murder” or “intentional murder plus” (People v Miller, 6 NY3d 295, 301 [2006]). Thus, as with other forms of felony murder, the underlying predicate felony or 30 felonies are an essential element of the crime charged. (See id. at 302 [“Section 125.27(1)(a)(vii) predicates an intentional felony murder conviction on the underlying felonies”]; People v Parks, 95 NY2d 811, 815 [2000]; People v Middleton, 32 AD3d 557, 557 [3d Dept 2006].) The People’s decision to charge under this statute had two important sentencing consequences. On the one hand, it exposed Mr. Couser to a greater sentence than other potential charges, such as attempted second degree murder. An attempt to commit first degree murder is itself a class A-1 felony (Penal Law § 110.05[1]), and it is punishable by an indeterminate sentence with a minimum term of 15 to 25 years and a mandatory maximum term of life (Penal Law § 70.00[2][a], [3][a].) In contrast, an attempt to commit second degree murder would be a class B violent felony (Penal Law §§ 70.02[1][a], 110.05[3]), and it would have been punishable by a determinate term between 5 and 25 years in length (Penal Law § 70.02[2][a], [3][a]). Thus, the People’s charging decision would allow them to obtain not only a lengthy prison sentence but also an otherwise unavailable life term. On the other hand, the People’s charging decision would prevent them from obtaining a consecutive sentence on this charge. The second prong of Penal Law § 70.25(2) requires concurrent sentencing where the acts constituting one crime also constitute a material element of another. It is well established that this 31 provision requires concurrent sentences for felony murder and the underlying predicate felony or felonies. (See e.g. People v Parks, 95 NY2d 811, 815 [2000]; People v Davis, 68 AD3d 1653, 1655 [4th Dept 2009]; People v Faulkner, 36 AD3d 951, 953 [3d Dept 2007].) Because Penal Law § 125.27(1)(a)(vii) is an intentional felony murder statute, this same principle applies. The requirement of concurrent sentencing follows from a simple application of Penal Law § 70.25(2) and the case law addressing felony murder generally. But in addition, by the time of the sentencing advice at issue in this appeal, the Third Department had addressed concurrent sentencing issues in two cases involving section 125.27(1)(a)(vii) and a predicate attempted robbery charge. In both cases, the Third Department held that sentences for murder under this subsection must run concurrent to sentences for the underlying predicate felony. (See People v Cherry, 46 AD3d 1234, 1238 [3d Dept 2007] [“Two of the murder in the first degree counts (counts 5 and 6) were based upon the murder occurring in the course of an attempted robbery (count 10), making the latter crime an element of those murder counts subject to concurrent sentencing”]; People v Middleton, 32 AD3d 557, 557-58 [3d Dept 2006] [concurrent sentencing required upon guilty plea to Penal Law § 125.27(1)(a)(vii) and attempted robbery].) As the citations in these decisions indicate, the Third Department recognized that these holdings follow from the established principle that sentences for felony murder must be concurrent 32 with the sentences for the underlying felony or felonies. Additionally, years before the sentencing advice at issue, the Court of Appeals and the Appellate Division had addressed an analogous sentencing issue. In People v Rosas (8 NY3d 493 [2007]), this Court addressed a case involving two convictions under the very next subsection of the first degree murder statute, Penal Law § 125.27(1)(a)(viii). Under this subsection, an intentional killing is a first degree murder if the defendant also kills an additional person as part of the same criminal transaction. Thus, like subsection 125.27(1)(a)(vii), this subsection also establishes a form of first degree murder that depends on and incorporates an additional predicate crime. In Rosas, the defendant was found guilty of murdering a married couple as they slept in bed. The Court recognized that, as charged under this statute, the killing of the husband was a material element of the murder of the wife and the killing of the wife was an element of the murder of the husband. (See Rosas, 8 NY3d at 498.) Concurrent sentencing was, therefore, required. (Id.)2 In other cases around the same time, the Fourth Department also reached this same result. (See People v Ojo, 43 AD3d 1367, 1368 [4th Dept 2008]; People v Jackson, 41 AD3d 1268, 1270 [4th Dept 2007].) These cases provide further 2 Significantly, in Rosas, the Court also addressed and rejected the People’s argument that it would be anomalous to require concurrent sentencing for first degree murder charges because consecutive sentences would have been available if they had charged the killings as second degree murders, a less serious crime. As is the case here, any apparent anomaly is offset by the fact that a first degree murder conviction exposed the defendant to a harsher range of penalties. (See Rosas, 8 NY3d at 499-500.) Here, as noted above, the People’s charging decision reflected a choice between the possibility of a consecutive determinate sentence, which might be as little as 5 and no more than 25 years, or a concurrent sentence that would necessarily include at least 15 years in prison and a life term of supervision. Thus, requiring concurrent sentencing does not diminish the seriousness of the crime. 33 illustration of the general principle that where one crime serves as a predicate or essential element of another crime, the sentences for those crimes must be concurrent. At the time of the plea advice at issue, it was also well-established that where the indictment, the evidence, and the jury charge does not indicate that just one of the underlying felonies serves as the predicate, then the sentence for felony murder must run concurrent to all of the potential predicate felonies. (See People v Parks, 95 NY2d at 815; People v Middleton, 32 AD3d at 558.) Here, the indictment does not specify that the attempted murder was in furtherance of any one of the robbery or attempted robbery crimes. Instead, it merely states that the attempted killing took place “in the course of committing or attempting to commit and in furtherance of a robbery, or of immediate flight therefrom” (A.17.) The jury charge similarly instructed that this count requires an attempt to kill “while the Defendant was in the course of committing, or attempting to commit, and in furtherance of a robbery” (A.405-06, A.408). Furthermore, the evidence could provide no support for the theory that the shooting occurred in furtherance of just one of the simultaneous robberies or attempted robberies. The robbery of Ms. Belknap was complete before it occurred. And Ms. Belknap testified that Mr. Lewis had been offering up his gold watch before the shooting occurred and that Mr. Couser did not take it. (A.134.) Instead, 34 the testimony suggests that – if the shot was intentional and if it had any relation to the other crimes at all – then it was in furtherance of flight from the entire incident. Ms. Belknap testified that immediately after the shot, Mr. Couser addressed the entire group and said that “if any of us moved, or said anything, that he was going to kill us all,” and then he walked away. (A.135.) Ms. Salonen testified that immediately after the shot Mr. Couser ran away. (A.119.) Thus, to the extent that the shooting could be understood to further the robbery or attempted robbery crimes, it appeared to do so only by discouraging pursuit or resistance after the fact. Finally, as further confirmation, the People’s proffer during the Alford plea, like the testimony at trial, did not indicate that the shooting could be construed as an act in furtherance of any one of these crimes in particular. (See A.493-95.) Thus, under the second prong of Penal Law § 70.25(2), any sentence on Count One would have to be concurrent to the sentences on Counts Two, Five, Six, and Seven. Trial counsel’s incorrect advice fell below any reasonable professional norms. For Mr. Couser, who was already facing a 48-year sentence, the risk of an additional consecutive sentence was the critical issue in making a plea decision. The prison portion of any concurrent sentence would be subsumed by the 48-year sentence he was already facing, and avoiding a consecutive sentence would be the only way to maintain a chance at release. Given the importance of the issue, trial 35 counsel plainly should have been aware of the established law requiring concurrent sentences, and if he was not aware, he should have been able to discover that law with only a small amount of research. This basic legal error on a critically important issue constitutes deficient performance. (See Hinton v Alabama, 517 US __, 134 S Ct 1081, 1089 [2014] [“An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland”]; Cullen, 194 F3d at 404; Gordon, 156 F3d at 380.) The record also establishes prejudice. There is more than a “reasonable probability” that, but for this advice, Mr. Couser would not have pled guilty. Prior to the first trial, defense counsel explained that Mr. Couser had been willing to plead to the felony complaint, which did not include any attempted murder charge, but that he would not plead guilty to the attempted first degree murder charge which was added during the indictment process. (See A.35-36.) This is why the case went to trial in the first place. Thus, the first trial shows that Mr. Couser was plainly willing to go to trial on Count One rather than plead guilty. After the first trial, defense counsel explained that Mr. Couser still remained unwilling to admit any intent to kill Mr. Lewis and that he would again go to trial on Count One rather than make such an admission. (See A.33, A.482-84.) A trial date was then set. (A.483-84.) A plea only became possible when the court 36 subsequently decided that this would be “the one and only time that the court has been willing to accept an Alford plea.” (A.491; see A.487-93.) Thus, it was apparent from Mr. Couser’s conduct both before and after the first trial that he would go to trial rather than actually admit he committed the crime in Count One. Indeed, given the court’s initial unwillingness to accept an Alford plea, it appears that Mr. Couser must have been expecting to go to trial again. Once an Alford plea became a possibility, Mr. Couser’s plea decision was clearly motivated by the error in counsel’s sentencing advice. Defense counsel explained that, based on his advice that the sentence after trial could be “consecutive or concurrent,” Mr. Couser would “accept this opportunity to plead and receive this concurrent sentence.” (A.489-90.) Aside from this supposed risk of a consecutive sentence, no other benefit could have reasonably motivated Mr. Couser’s plea. Count One requires an indeterminate term with a maximum of life and a minimum between 15 and 25 years. (See Penal Law § 70.00[2][a], [3][a][i].) Thus, aside from concurrent sentencing, the only possible benefit that a plea could bring would be that the minimum term of his sentence would be 15 years instead of potentially 25 years. At the time, however, Mr. Couser was already facing a 48- year determinate term. So it would have been inconsequential whether the minimum term was 15 years or 25 years, as long as this new sentence was concurrent. Whether he received the maximum or the minimum on Count One, the 37 resulting term would still have been subsumed by his 48 year sentence. Thus, from Mr. Couser’s perspective, the only benefit that mattered was obtaining a concurrent sentence so that at the end of his 48-year sentence, he would not be facing another consecutive sentence and would, instead, have a chance at release. The record also shows that, if given proper advice about sentencing, a decision to go to trial would have been quite rational (see Picca, 97 AD3d at 184- 85 [holding that the prejudice inquiry requires that the choice to go to trial would have been a “rational” one, not necessarily “the best one”]). Although the “prejudice inquiry here does not necessitate a prediction analysis as to the likely outcome of the proceeding” (McDonald, 1 NY3d at 115), it bears emphasis that Mr. Couser had a non-negligible chance of obtaining an acquittal on Count One. The trial evidence indicated that Mr. Couser had fired a single shot from close range but had only grazed the alleged target. Although there was no indication of any resistance or threat that would motivate immediate flight, and although the gun was loaded with at least four more bullets (A.217, A.254-55), Mr. Couser chose to flee without firing another shot. These actions were not suggestive of an intent to kill. Moreover, the People’s evidence indicated that when cocked, the trigger on the revolver was exceptionally sensitive (see A.239, A.254), supporting the claim of an accidental shooting. The potential for acquittal was demonstrated by the fact that the jury could not reach a verdict on this count after the first trial. Regardless 38 of what the jury count might have been at the first trial, an acquittal at re-trial was, at the very least, quite possible. If Mr. Couser had understood that the sentence was required to be concurrent, it would have been rational for Mr. Couser to take any chance at an acquittal, rather than simply accept a life term. In sum, Mr. Couser received ineffective assistance of counsel. With respect to the federal test, the record shows that counsel provided erroneous legal advice on the central issue in the plea decision and that, but for that advice, there is more than a reasonable probability that Mr. Couser would not have pled guilty. These facts also establish that Mr. Couser did not receive meaningful representation under the New York state constitutional standard. By revealing counsel’s erroneous sentencing advice, “the record casts doubt on the apparent effectiveness of counsel.” Moreover, the lost chance at an acquittal on an A-1 felony was counterbalanced by a plea that had no discernible benefit when compared to the potential outcome at trial. Thus, Mr. Couser did not receive a favorable plea. Because Mr. Couser received ineffective assistance of counsel with respect to this critical decision, Mr. Couser’s plea to Count One must be vacated. 39 Point III: Mr. Couser’s Alford Plea Should Be Vacated Because The Record Does Not Show That It Was The Product Of A Knowing, Voluntary, And Intelligent Choice. If the record leaves any doubt as to the sufficiency of defense counsel’s sentencing and plea advice or its impact on Mr. Couser’s decision, the record still presents, on its face, a substantial question as to the voluntariness of Mr. Couser’s plea to Count One. Based on the comments of defense counsel explaining Mr. Couser’s decision, the trial court had an obligation to inquire and ensure that Mr. Couser was making a knowing, voluntary and intelligent decision to enter an Alford plea. Because the court failed to do so, his plea must be vacated. “[W]hen a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (People v Hill, 9 NY3d 189, 191 [2007], citing NY Const, art 1, § 6). “[W]here the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure [the] guilty plea is knowing and voluntary” (People v Mox, 20 NY3d 936, 938 [2012], quoting People v Lopez, 71 NY2d 662, 666 [1988]). These principles, including the court’s duty to inquire, necessarily apply in the context of an Alford plea. Although permitted in New York, “Alford pleas are—and should be—rare” (Silmon v Travis, 95 NY2d 470, 474 [2000]). “[S]uch a 40 plea is allowed only when, as in Alford itself, it is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt” (id. at 475; see People v Hill, 16 NY3d at 814). Thus, courts have a duty to inquire and ensure an Alford plea meets this standard. “[T]here is no such thing as a ‘limited’ Alford colloquy or plea” (Hill, 16 NY3d at 814). Instead, as in every case where the defendant’s allocution negates an essential element of guilt, “the trial court must inquire further to ensure that defendant’s guilty plea is both knowing and voluntary” (Silmon, 95 NY2d at 475 n.1 citing, inter alia, People v Lopez, 71 NY2d at 666). “[B]efore accepting a plea of guilt where the defendant’s story does not square with the crime to which he is pleading, the court should take all precautions to assure that the defendant is aware of what he is doing” (People v Serrano, 15 NY2d 304, 310 [1965]). Here, Mr. Couser engaged in no factual allocution at all, but based on counsel’s comments and communications with the court, it was quite clear that Mr. Couser maintained that he lacked the intent required for the crime in Count One (A.33, A.490-91; see A.482-83, A.488-89). If this alone did not trigger the court’s duty to inquire into the basis for Mr. Couser’s pleading decision, then that duty was certainly triggered by defense counsel’s problematic explanation. Counsel alerted the court that he had advised Mr. Couser that going to trial would carry the risk of an additional consecutive sentence and that Mr. Couser was entering an 41 Alford plea in order to avoid that risk: “[Mr. Couser] sees based on our discussions that there is a strong likelihood that if we had a retrial that he would be convicted of the attempted murder charges [sic], and he would not know what the sentence would be and whether it would be concurrent or consecutive. The offer here has been for him to plead to the charge and receive the minimum sentence to run concurrent with the sentence he is serving. And he has indicated to me that he wishes to make the voluntary choice to accept this opportunity to plead and receive this concurrent sentence.” (A.489-90 [emphasis added].) At a minimum, this statement should have alerted the court that there was a question about whether Mr. Couser fully understood the potential risks of trial and the purported benefits of the plea offer. As explained in Point II above, based on then-established law (see e.g. Penal Law § 70.25[2]; Rosas, 8 NY3d at 498-99; Parks, 95 NY2d at 815; Cherry, 46 AD3d at 1238; Middleton, 32 AD3d at 557-58), it should have been apparent to all involved that any sentence on Count One would have to be concurrent to the sentence or sentences on the underlying predicate felony or felonies. Moreover, based on the indictment, the facts set forth at trial, and the facts put on the record during the People’s plea proffer (A.493-95), it should have been apparent that any sentence on Count One would have to be concurrent to the entirety of Mr. Couser’s existing sentence. Thus, it is unclear why counsel believed that Mr. Couser would be risking a consecutive sentence if he went to trial, and this advice appears to be a 42 legal error on defense counsel’s part. In the context of an Alford plea, this error casts substantial doubt on the voluntariness of the plea as it appears to undermine any reasonable motive Mr. Couser might have had for pleading guilty to a crime that he insisted he did not commit. Just as it is established that a decision “to avoid the risks of trial and the possibility of consecutive sentences” can provide a basis for a knowing and rational Alford plea (People v Bates, 83 AD3d 1110, 1112 [3d Dept 2011]), it should be equally clear that such a decision would not be knowing and rational if there is no legal possibility of consecutive sentences. (Cf. People v Legault, 180 AD2d 912, 913 [3d Dept 1992] [Alford plea was rational in light of “the obvious and real potential of consecutive sentences”] [emphasis added].) Based on these problems, the trial court was obliged to inquire directly of the defendant and ensure that the “plea represent[ed] a voluntary and intelligent choice among the alternative courses of action open to the defendant” (North Carolina v Alford, 400 US 25, 31 [1970]; see Serrano, 15 NY2d at 310; People v Mox, 20 NY3d at 938 [requiring inquiry of the defendant, not defense counsel, to establish voluntariness and intelligence of plea]; People v Jiminez, 110 AD3d 740 [3d Dept 2013] [same]). But the trial court made no inquiry into counsel’s reasoning and no direct inquiry to confirm that Mr. Couser understood the risks and benefits of the alternative courses open to him (see A.487-501). Indeed, the 43 court did not ask Mr. Couser any of the questions typically required to ensure that any plea – Alford or not – is voluntary. Because there can be no assurance that Mr. Couser’s decision to enter an Alford plea was the product of a voluntary and knowing decision, and because the record raises specific doubts as to whether he understood the risks and benefits involved in the decision, his plea should be vacated. This issue was raised to the Appellate Division and rejected, although it was not previously raised through a motion to the trial court. This is no obstacle to appellate review. “[W]here a deficiency in the plea allocution is so clear from the record that the court’s attention should have been instantly drawn to the problem, the defendant does not have to preserve a claim that the plea was involuntary because ‘the salutary purpose of the preservation rule is arguably not jeopardized’” (People v Peque, 22 NY3d 168, 182 [2013], quoting Lopez, 71 NY2d at 665-666.) This Court has further explained that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (Peque, 22 NY3d at 182). This can occur where a defendant is unaware of the grounds for a motion to vacate the plea. (See id. at 182-83, citing People v Louree, 8 NY3d 541, 546 [2007].) Here, the problem in the plea is plain from the record. As explained above, it stems from the fact that Mr. Couser denied an essential element of the crime and 44 from counsel’s on-the-record explanation of his advice regarding the potential sentencing consequences of conviction after retrial. Moreover, because these problems stem from an apparent error in defense counsel’s advice regarding highly technical sentencing laws, Mr. Couser could not have been expected to discover the issue on his own. (See Peque, 22 NY3d at 183 [no preservation required where defendant was improperly advised regarding consequences of his plea and thus did not know to object or move to withdraw].) Therefore, the preservation requirement should not apply, and this Court should review the record to determine whether the Alford plea appears to be a rational and voluntary choice. Based upon that review, it should be apparent that the record raises grave doubts that Mr. Couser’s Alford plea was intelligently and voluntarily entered. There is every indication that Mr. Couser’s decision to plead to this crime – a crime with respect to which he has always maintained his innocence – was motivated by an incorrect or incomplete understanding of the risks of exercising his right to a trial. Therefore, his Alford plea to Count One must be vacated. 45 CONCLUSION For the reasons given in Point One, Mr. Couser’s sentence on Count Two must be modified to run concurrent with the sentences on Counts Five, Six, and Seven. For the reasons given in Points Two and Three, Mr. Couser’s Alford plea to Count One must be vacated. Dated: August 27, 2015 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: JAMES A. HOBBS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4213