People v Delacruz

[*1] People v Delacruz 2015 NY Slip Op 50561(U) Decided on April 21, 2015 Sullivan County Ct LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2015
Sullivan County Ct

The People of the State of New York,

against

Jensey Delacruz, Defendant.



20-2012



David J. Goldstein, Esq., Goldtsein & Weinstein, 888 Grand Concourse, Bronx, NY 10451

Attorney for Defendant

Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701

By. Robert L. Zangla, ADA, of counsel, Attorney for the People
Frank J. LaBuda, J.

This matter is before the Court on Defendant's motion pursuant to CPL §440.10 to vacate the judgment of conviction in the above-captioned matter, entered by this Court on March 21, 2013, on the grounds of ineffective assistance of trial counsel. The People submitted an affirmation in opposition. Defendant submitted a reply. The Court held a hearing on March 9 and March 11, 2015, at which attorneys and Defendant were present. Subsequent to the hearing, the People and defense counsel, at the direction of the Court, submitted proposed findings of fact and conclusions of law.

Based on the submissions, a review of the trial transcript, and after a hearing, which included the testimony of Defendant's original trial counsel, John Cobb, Esq. (Cobb), this Court is constrained to grant Defendant's motion and vacate the judgment of conviction rendered by a jury in this matter.

Procedural Background

On January 25, 2012, a Sullivan County Grand Jury indicted Defendant, charging him with one count of Attempted Assault in the First Degree (PL §110.00/120.10(1)), four counts of Criminal Possession of a Weapon in the Second Degree (PL §§265.030(1)(b), 265.03(3)), and one count of Reckless Endangerment in the First Degree (PL §120.25). The charges stemmed from an August 6, 2011, incident in which it was alleged that Delacruz, upset after a man, later identified as Ricardo Pena (hereinafter, "Pena"), called his girlfriend, Victoria Pellegrino [*2](hereinafter, "Pellegrino"), on her cell phone and home phone,[FN1] tracked down Pena at a location in Liberty, New York, and went there with Pellegrino, her younger brother, Devin Berrier (hereinafter, "Berrier"), and another young man, Steven Bristow, aka Dog Pound (hereinafter, "Bristow" or "Dog Pound"). Defendant and his vehicle were placed at the Liberty location by several witnesses at approximately 8:45 pm. During the second incident, at approximately 10:00 pm, only Berrier, who was also in the vehicle, placed Defendant and his vehicle at the subject location. As will be discussed in more detail below, during the first incident, it was alleged there was a verbal and physical altercation between Delacruz and Pena, during which Bristow discharged a firearm and Berrier displayed a machete. During the second incident, it was alleged there was a "drive-by" shooting at the Liberty location and that Delacruz was driving the vehicle and someone else, likely Bristow, fired the shots.

Although Bristow was offered and accepted a plea agreement in connection with this matter,[FN2] a plea agreement was not reached for Delacruz and the case went to trial. Jury selection began on June 18, 2012, and opening statements and testimony began on June 20, 2012. Just a little over a week before trial, by letter dated June 11, 2012, defense counsel, Cobb, who was the third attorney on the case and privately hired,[FN3] requested that the Court appoint him as 18-B counsel for Defendant, as Defendant informed him he could not pay his legal fees and there would be many costs and fees associated with defending the case. That same date, June 11, a court assistant informed Cobb by e-mail that the Court would not assign him to represent Delacruz, but offered him the opportunity to make an application to be relieved as counsel. Attorney Joel M. Proyect, Esq., Delacruz' previous lawyer, had already filed an omnibus motion and demand for discovery in February of 2012. Based on that submission, the Court granted Defendant's request for Huntley, Sandoval, and Ventimiglia hearings. By fax dated April 26, 2012, Cobb indicated Defendant waived the combined Sandoval/Ventimiglia hearing. The record indicates Cobb ultimately waived all pre-trial hearings in this matter, including Huntley and suppression hearings, despite the fact that Delacruz made statements to the police and his car was seized without a warrant and then searched pursuant to a warrant, which turned up evidence the People used at trial.

The trial began on June 20, 2012. By letter dated and faxed June 21, 2012,[FN4] the Court Attorney informed Cobb and Assistant District Attorney Robert L. Zangla (hereinafter, "Zangla") that if the Court was not notified of any specific jury instruction requests by 5:00 pm on June 22, 2012, the Court would assume the parties agreed to the Court's standard criminal jury instructions and charges. Not only did the Court not hear from Cobb, but he failed to appear for a charge conference with the Court Attorney, and admitted during his testimony during the 440 hearing that he never reviewed the packet of jury instructions and charges with which he was provided by the Court prior to summations.

After due deliberation, the jury found Delacruz guilty of all charges in the indictment.

Trial Testimony

The transcript from the trial indicates Pellegrino and Berrier testified that during the first trip to the location in Liberty, Delacruz and Pellegrino were seated in the front seat of Delacruz' car with Delacruz driving; Berrier and Dog Pound were in the back seat. The People's witnesses testified that when Delacruz arrived at the Liberty location, Pena exited the house, Delacruz and Pena had a verbal exchange, and then Pena hit Delacruz in the face hard enough to knock off his glasses and knock him down. There was no testimony that Delacruz struck Pena first, or that he struck Pena after Pena hit him and knocked him down. The People's witnesses further testified that after Pena struck and knocked down Delacruz, Berrier exited the rear of the vehicle with a machete, and Dog Pound exited the rear of the vehicle with a handgun. All of the witnesses who testified regarding the handgun unequivocally stated that during the 8:45 pm incident Dog Pound was holding the firearm and that it was Dog Pound who fired the gun. There was no trial testimony that Delacruz had a firearm or any other type of weapon. There was no testimony from Pellegrino or Berrier that Delacruz knew Dog Pound was armed, or that there was any plan that Dog Pound would bring, display or fire a handgun when Delacruz found Pena. There was no testimony that Delacruz knew Berrier had a machete, or that there was any plan that Berrier should bring a machete to Liberty or display a machete when Delacruz found Pena.

At approximately 10:00 on that same evening of August 6, 2011, there was a "drive-by" shooting at the same Liberty location at which Delacruz had earlier found Pena. None of the witnesses who were inside the house could identify the vehicle or the occupants of the vehicle and did not know from where the bullets came. The three witnesses who were not in the house, which included Pena and two other males (they were in a vehicle on the street adjacent to the house), could not identify anyone in that vehicle, and did not testify that they saw anyone shoot at the house from that vehicle. The witnesses from inside the house testified they heard numerous shots fired and, in fact, there were numerous bullet holes in the house and a bullet entered through the side of the house into a bedroom, landing on a bed, inches away from one of the witnesses. During the trial, Berrier, who admitted to being in the front passenger seat of [*3]Delacruz' car during the 10:00 pm incident,[FN5] testified that Delacruz was driving and Dog Pound was in the back seat; that he heard gunshots from somewhere behind him, but saw nothing. There were statements given to the police, however, that it was Pellegrino who was driving Delacruz' car during the 10:00 pm incident and that Delacruz was not in the car. Berrier was the only witness who placed Delacruz at the scene of the second incident.

After the jury convicted Defendant on all of the charges in the indictment, by letter dated July 23, 2012, Delacruz contacted the Court directly, asking for assigned counsel for the remainder of his case, including post-verdict motions and sentencing. He informed the Court he had filed a grievance against Cobb in the Second Department. In addition to claiming ineffective assistance of counsel, Delacruz stated in that letter that the June 18, 2012, video recording from the Sullivan County Jail would show Cobb speaking with another inmate, Charles Shortridge(hereinafter, "Shortridge"), about Delacruz' case, and showing Shortridge confidential documents and communications from Delacruz' file. By letter dated July 24, 2012, Delacruz again contacted the Court, requesting that the Court reject any CPL §330 motion filed by Cobb on behalf of Delacruz.

Specific Claims of Ineffective Assistance of Counsel

This Court held a CPL §440 hearing on March 9 and March 11, 2015. The only witness called to testify was John Cobb, Esq. He was called by Defendant.

By his own admissions during the 440 hearing, Cobb testified that for the entire time he represented Delacruz, he only met with him on three or four occasions and spent only 20 to 30 minutes with Delacruz during each of those meetings. Cobb, who repeatedly testified that he doesn't seek legal advice from his clients and was not interested in Delacruz' thoughts regarding trial strategy, admitted that he never discussed the facts of the case with Defendant, and admitted during direct examination that he never asked or discussed with Delacruz what actually happened on the night of August 6, 2011. "Sometimes it's better, counselor, not to ask." Tr. 143.

Although Delacruz initially informed Cobb he would not consider a plea agreement that included a state prison sentence, Cobb did not inform Defendant of the term of imprisonment he could be facing if convicted of any or all charges after trial. Cobb admitted during his testimony that he only advised Delacruz during their very limited plea discussion that if he were convicted after trial, he would likely receive a minimum sentence of six to eight years in state prison. Cobb never informed Delacruz that he could receive consecutive sentences amounting to at least 30 years in state prison. When asked why he did not inform Delacruz of the maximum possible sentence, he testified: "...[I]n the hundred cases I have done, I have never come in with something that is going to be disturbing and on the down side, well, you know, Mr. Smith, you could get 30 years for this. What useful information is that?"

On direct examination of Cobb by Goldstein, the following disturbing testimony was given:

Q: Did you tell him he should consider a different offer that involved state time considering how much time he was facing?

A: I don't remember specifically. Certainly it's possible.

Q: Anything is possible. Do you remember as you sit here now telling him, I think you better consider an offer that involves state prison time because of the amount of time you're going to get if you go to trial and lose...?

A: Those are your words, not mine. I can tell you what my words were.

Q: Can you answer the question, please?

A: What's the question?

Q: Did you ever tell him he should consider a states prison offer because of the time he was facing if he went to trial and lost? It's an easy question, yes or no?

A: I advised him what the parameters he was facing were.

Q: What did you tell him?

A: I told him gun possession is a minimum of three and a half years, reckless endangerment, which would have been the soft side of the charge, I told him he was looking in my estimation at a minimum of six to eight years of upstate time.

Q: Is that all you told him as you sit here; is that all [you] can remember telling him?

A: I didn't change that viewpoint, and I certainly told him about it.

Q: Did you tell him how much time he was facing if he got convicted of attempted assault in the first degree? Just yes or no, please.

A: No.

***

THE COURT: Did you tell him what the maximum was? I think you said you didn't.

A: I don't think I did.

GOLDSTEIN: You didn't tell him he was facing 20 years, you certainly didn't tell him he was facing 30 years, did you?

A: No.

Tr. 12-14.

Cross-examination of Cobb by Assistant District Attorney Zangla:

Q: And did you tell him what his exposure was, what the maximum could be?

A: No.

Q: Did you get a sense from him he knew what it was?

A: I didn't ask him one way or the other....

Q: Simple question: Did you ever say to him, you're looking at 30 years?

A: No.

Q: Did you ever give him a number what he was looking at, other than your opinion of what he might get?

A: That is my opinion.

Q: I know. But you didn't say to him, you're looking at 30? Did you ever tell him what you're looking at, his maximum exposure?

A: No.

Q: Why is that?

A: Because at the time, it's not probative... I'm not going to tell my client he's looking at maximum numbers....

Tr. 134-136.

Cobb further admitted that he never sough a specific plea offer from the People, other than ADA Zangla indicating there would be state time with any negotiated agreement, despite an employee at Cobb's law firm writing a letter to Delacruz informing him that Cobb was going to try to get him the best plea possible.

Cobb also admitted that he did not have a discussion with Delacruz concerning his constitutional right to testify on his own behalf and assist with his own defense, despite Delacruz' assertions that he wished to do so:

Direct examination of Cobb by Mr. Goldstein:

Q: Did you have any discussions with Mr. Delacruz about whether or not he wanted to testify at this trial, yes or no?

A: I don't know. The topic came up, yes.

Q: Did he tell you he wanted to testify?

A: No.

Q: Did he tell you he wanted you to call witnesses on his behalf?

A: I wasn't seeking professional advice on legal matters from Mr. Delacruz....

Q: Did he ever tell you he wanted you to call Steven Bristow, the actual shooter, to testify?

A: I don't remember whether he did nor not.

Tr. 48-49.

***

Cross-examination of Cobb by ADA Zangla:

Q: Do you remember as you sit here today if he told you he wanted to testify?

A: If he told me he wanted to testify, I certainly don't remember, but I do not believe he ever said he wanted to testify.

Q: ....If a defendant is facing 30 years, do you think that would lead you to remember if he told you he wanted to testify?

A: The hypothetical doesn't lead me anywhere.

Q: I'm going to ask it until the Judge says you don't have to answer it. Do you believe a defendant telling you that he wants to testify when he is facing 30 years is important?

A: The notion of him facing 30 years never came up in our discussions....[The] idea of him testifying was considering the statements that he had made, which were going to be thrown in his face at trial, would have utterly destroyed any possible benefit from him testifying. The facts were going to speak for themselves.

Tr. 100-101.

Re-direct examination of Cobb by Mr. Goldtsein:

Q: And you just said that you never discussed with him his right to testify. You just said that, right, two minutes ago?

A: Is it going to be my turn to answer soon?

Q: Sure.

A: I don't believe we did, no.

Q: Okay. Isn't it your obligation as an attorney to discuss with your client that fact that he has a right to testify, or is that legal decision yours to make?

A: I don't think that I would start from criminal law Page 1 when I have a client. Probably most clients would know as a matter of course that they were permitted to testify without me going into that.

Q: How would he know that? Did Mr. Delacruz go to law school before?....Is it your obligation as an attorney to discuss with your client his right to testify or right not to testify, just yes or no?

A: I would imagine so.

Q: Why didn't you do it in this case?

A: There was no question in my mind that Mr. Delacruz was aware that a defendant in a criminal charge has the right to testify. I wouldn't even bother with it.

Q: Based on what? You said you never talked to him about it and he never brought it up to you.

A: I didn't.

Q: Based on what?....

A: Based on the fact I have been to law school and I have done a hundred trials.

Tr. 144-146.

The police seized Delacruz' vehicle before they obtained a search warrant. The vehicle was parked in a parking lot at an apartment complex when it was seized. Cobb admitted he waived a hearing, which had been granted upon previous counsel's application, with regard to the evidence seized from Delacruz' vehicle, including shell casings that matched those found at the scene in Liberty, as well as a receipt from Wendy's fast food restaurant in Monticello (which new counsel for Defendant, Mr. Goldstein, points out was critical to establishing a time line and placing Defendant in certain locations at certain times), based on his belief that the automobile exception justified the seizure of the car. During direct examination of Cobb at the 440 hearing, it became clear to this Court that Cobb misunderstood the legal concept of the automobile exception.

At the 440 hearing, Cobb also testified that he waived the Huntley hearing regarding statements Delacruz made to the police, and he further admitted he waived a hearing regarding identification procedures. On direct examination, Cobb testified that he waived said hearings because he did not believe Defendant would prevail; he specifically stated that he waived the Huntley hearing because the less said about what the defendant told the police, the better. Cobb admitted during direct testimony that he normally would not waive hearings that had been ordered and that he never discussed waiving the hearings with Delacruz.

Most disturbing to this Court,[FN6] Cobb mistakenly believed his client, Delacruz, possessed the gun and fired the shots on August 6, 2011. He testified that "everyone knew" Delacruz possessed the gun because the witnesses said so. In reality, no witnesses testified at trial that Delacruz had any weapon, let alone a handgun or other type of firearm. To the contrary, all of the witnesses testified it was Dog Pound who had the gun and fired it.

Cross-examination of Cobb by ADA Zangla:

Q: So was it important to you to establish that your client did not have a gun on the first incident?

A: I didn't feel the testimony of the witness established anything.

Q: So it was important to you to show that Mr. Delacruz, your client, did not have a gun, correct?

A: That did not establish the fact. That the witness said he didn't have a gun was a self-serving statement.

Q: But it was good for your client, yes?

A: Contradictory and blatantly improper testimony doesn't help my client any.

Q: The witness testified that your client didn't have a gun. Would you agree with me that is good for you and your client?

A: If he had been the only witness, yes.

Q: But he wasn't the only witness, was he?

A: No.

Q: Right. So would you agree with me that the testimony established that your client did not have a gun, would you agree with me that's what the testimony brought out?

A: That's what he said, but it didn't prove anything.

Q: But it helped to show that Mr. Delacruz didn't have a gun, yes or no? Just yes or no?

A: No.

Q: Why would that not help to show he didn't have a gun?

A: Because it was blatantly in the face of all the other witnesses that said he had the gun.

Q: What if I told you there weren't any other witnesses that said he had a gun?

A: I was just very much aware there were other witnesses and we just had to wait for them to show up.

THE COURT: What do you mean, wait for the witnesses to show up?

A: If there hadn't been witness testimony there was no dispute that Mr. Delacruz had a gun, regardless of what Mr. Pena said. All it made Mr. Pena look like was an unreliable witness.

ZANGLA: But if the jury believed Mr. Pena in his testimony, when you cross-examined him, that he did not have a gun, that helping Mr. Delacruz, if the jury believed that, would you agree that would be good for Mr. Delacruz.

A: Yes, if the jury believed it.

Tr. 70-72.

Q: ....Would you agree with me that, in fact, no testimony came out, no physical evidence came out that during the second incident the defendant personally possessed or fired the gun, would you agree with me on that?

A: I think that would be almost a fair statement.

Q: Almost, but not quite?

A: Well, it's the jury.

Q: Correct me how it's not a correct statement that there was no proof he fired the gun personally?

A: Look, there were 12 people in the jury, and they all agreed with you.

Q: You are not answering the question. What proof was there in the second incident that this defendant fired the gun by himself?

A: I didn't think there was much at all.

Q: Right. And you didn't argue that in your summation?

A: Yes.

Tr. 98. None of the People's witnesses ever testified that Delacruz possessed or fired a firearm of any type on the night of both incidents, until Cobb, himself, elicited such testimony from Pena,

who had told the police he thought Delacruz had a gun, but did not testify to that at trial on direct [*4]examination.

When questioned about why he did not use witnesses' prior statements to impeach their credibility, Cobb acknowledged that he must have received the prior statements of witnesses and Grand Jury testimony of all prosecution witnesses who testified at trial, but he could not recall ever reading or reviewing those documents. In fact, Cobb never used any Rosario material during his cross examination of two witnesses to establish that Berrier was armed with a machete. Defendant now argues on 440 review, and this Court agrees, that because Berrier was the only witness who claimed Delacruz was at the second incident, it would have been crucial to establish that Berrier was armed with a machete so Defendant could argue he was an accomplice—thereby barring his uncorroborated testimony regarding Delacruz' location at the scene of the second incident. When asked why he did not use the statements by two of the witnesses at trial to establish that Berrier had a machete, Cobb claimed, incorrectly, that such testimony would not have helped Defendant and that there was no evidence to show Berrier had a machete. Furthermore, regarding Berrier, Cobb admitted that he never sought to impeach Berrier's testimony with respect to his testimony that he, Dog Pound and Delacruz drove straight to Wendy's in Monticello, 11 miles from the scene of the second incident in Liberty. The time and date stamp on the Wendy's receipt that was recovered from Defendant's vehicle showed that Delacruz was at Wendy's two and a half hours after the second incident; the trip from Liberty to Wendy's in Monticello takes approximately 15 to 20 minutes by car.

Cobb never asked Pellegrino if it was she, and not Delacruz, who was driving Delacruz' vehicle during the second incident. When asked on direct examination during the 440 hearing why he failed to question her along those lines, he indicated he could not remember. Pena had stated to police that Pellegrino told him she was driving during the second incident. When further questioned about this, Cobb testified that he did not pursue that line of questioning because it was never good to have witnesses (even prosecution witnesses) contradict each other. He testified that Pellegrino's answer would work against Defendant even though he could not explain how it could possibly hurt his case if the jury believed that someone other than Delacruz was driving the car during the second incident.

The People did not charge Delacruz with any gang-related crimes. Despite that, Cobb never objected to Pellegrino and another witness' testimony that Delacruz said some type of gang oath with Pena during the first incident. Cobb never cross-examined several of the People's witnesses regarding past criminal convictions or pending charges. In particular, Cobb never cross-examined one witness who was facing arson charges, including burning his girlfriend in Sullivan County.

Bristow, who had sent Cobb a letter indicating he would waive his Fifth Amendment rights and testify, was never contacted by Cobb or anyone from his office. Although, during direct examination at the 440 hearing, Cobb conceded Dog Pound's testimony regarding who did the shooting and who was in the vehicle during the second incident would have been important to Delacruz' defense, if he knew what Dog Pound was going to say, he never interviewed Dog [*5]Pound and never contacted Dog Pound's attorney in regard to this matter.[FN7] When questioned further as to why he failed to interview and call Bristow to testify, even though Defendant wanted him to testify, Cobb indicated he made those types of decisions, not the defendant. Cobb repeatedly testified that he did not call Bristow because he did not know what he was going to say on the stand; Cobb was unaware that Bristow was a co-defendant, also charged in this case.

Cross-examination of Cobb by ADA Zangla:

Q: As you sit here today is [it] your recollection that Mr. Bristow was the codefendant in this case?

A: No, it wasn't my recollection....

Q: Were you aware that he was a codefendant? How could you not be?

A: Because he hadn't been charged.

Q: He had been charged.

Tr. 111. Clearly, this testimony elicited by the People supports Defendant's 440 claim of ineffective assistance of counsel.

Procedurally, Cobb made no trial motion to dismiss when the People rested, nor did he make a motion to dismiss when the defense rested. During summation, Cobb conceded to the jury that all of the People's witnesses were telling the truth and that Delacruz was driving the car and present at both incidents on the night in question. Those two concessions established, at the very least, Delacruz' accessorial liability for the second incident, and yet contradicted Defendant's video-taped statement to the police. Cobb, in essence, bolstered the People's case.

During his testimony, Cobb admitted that he never reviewed the Court's proposed jury instructions/charges, despite the opportunity to do so. Cobb failed to remind the Court that it had to give the circumstantial evidence instruction that was required and which the Court had previously stated would be included in the charge. Cobb never requested an instruction that the jury could not consider the fact that the defendant did not testify; Cobb testified that he did not make that request because he thought the instruction was required as a matter of law whether or not he requested it.

Defendant also points out that Cobb never objected to any remarks or comments made during the People's summation. Specifically, Cobb never objected to the prosecutor's comments that Cobb was trying to "bamboozle" the jury, or that Pellegrino told Delacruz to surrender to the police because she knew he was guilty.[FN8] When asked why he did not object to those remarks, Cobb testified that he never objects during a prosecutor's summation. Cobb also did not object to [*6]the prosecutor's comments during summation regarding jury instructions with respect to circumstantial evidence, motive and the elements of the crimes charged.

Last, Cobb testified that he admitted in his response to Delacruz' complaint to the Grievance Committee for the Second Department [FN9] that he discussed trial strategy with a Sullivan County Jail inmate by the name of Charles Shortridge without Delacruz' permission, even though there was no reason to do so. During his testimony at the 440 hearing, Cobb denied discussing trial strategy with Shortridge and stated that when he visited Shortridge at the jail, they discussed matters concerning Shortridge.

By Order to Show Cause, dated December 26, 2012, Attorney John Ferrara filed a motion pursuant to CPL §330.30 to set aside the verdict. By decision dated March 20, 2013, the Court adopted the People's Findings of Fact and Conclusions of Law and denied Defendant's motion to set aside the verdict.

By notice of motion, dated November 14, 2014, Attorney David J. Goldstein, Esq., filed the within motion to vacate the judgment pursuant to CPL 440.10.

Discussion

A court, at any time subsequent to entry of a judgment, may, upon motion of a defendant, vacate said judgment upon the ground the judgment was obtained in violation of a right of the defendant under the New York or United State constitutions. CPL §440.10(1)(h). Although a motion pursuant to CPL §440.10 is precluded when the issues raised were previously decided on appeal, there exists an exception when the issue raised is ineffective assistance of counsel for an alleged failure to provide proper advice concerning sentencing. Millington v. Lee, 2015 US Dist. LEXIS 38741 [SDNY 2015]; People v. Reynolds, 309 AD2d 976 [3rd Dept. 2003].

A criminal defendant is entitled to the effective assistance of "competent" counsel during all phases of the proceedings brought against him. Strickland v. Washington, 466 US 668 [1984]. In New York, in order to successfully argue ineffective assistance of counsel, a defendant must "establish both that counsel's performance was deficient' and that the deficient performance prejudiced the defense.'" People v. Glasgow, 2012 NY Slip Op 3479 [3rd Dept. 2012], citations omitted. A criminal defendant must show that his attorney's handling of his case fell below "an objective standard of reasonableness" and "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra; see also, People v. Baldi, 54 NY2d 137 [1981]. The failure of an attorney fails to request proper jury instructions is in effective assistance of counsel. People v Besser, 96 NY2d 137 [2001]; Cornell v. Fitzpatrick, 665 F3d 369 [2nd Cir. 2011].

Both the Federal and New York Constitutions guarantee a criminal defendant the right to effective assistance of counsel. U.S. Constitution, Am. VI; see also McMann v. Richardson 397 US 759 n. 14 [1970]; NYS Constitution, Article 1, §6. An attorney must render "reasonably effective assistance." People v. Benevento, 91 NY2d 708, 712 [1998]; see also United States v. Cohen, 427 F3d 164, 167 [2nd Cir. 2005]. In New York, effective assistance of counsel is found when "...the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." People v. Baldi, supra, at 147. A defendant must receive reasonably competent service devoted to his best interests. People v. Benveneto, 91 NY2d at 712. Whether counsel has provided meaningful representation is evaluated based on the unique aspects of each case. See People v. Rivera, 71 NY2d 705 [1998]. Ineffective assistance of counsel claims may be based on any number of factors, including, but not limited to: plea bargaining failures, errors with pre-trial motions or the failure to participate in said hearings, failure to prepare for trial, failure to properly advise a client of his or her rights, and a failure to appropriately object to evidence presented by the prosecution during any phase of the trial, including during closing argument. Mui v. United States, 614 F3d 50 [2nd Cir. 2010]. Regardless of the nature of the claim, a defendant must overcome the presumption that the conduct complained of can be justified as "sound trial strategy." Michel v. Louisiana, 350 US 91, 101 [1955]; see also People v Berroa, 99 NY2d 134 [2002]. If of sufficient magnitude, a single incident or error may warrant a finding of ineffective assistance. Murray v. Carrier, 477 US 478 [1986]; People v. Brown, 17 NY3d 742 [2011]. Likewise, if none of the alleged errors, standing alone would constitute ineffective assistance, the cumulative effect of said errors and failures may rise to the level of constitutionally inadequate representation. Eze v. Senkowski, 321 F3d 110 [2nd Cir. 2003].

Analysis

Cobb's failure to honestly inform Delacruz of the maximum state prison time he was facing if convicted after trial was not only ineffective assistance of counsel, but based on his own testimony at the 440 hearing, intentional egregious misconduct. Millington v. Lee, supra. That single failure in representation resulted in ineffective assistance of counsel and deprived Defendant of his right to counsel under both the United States and New York Constitutions. Cobb's testimony regarding his rationale for his intentional and wilful failure to inform Delacruz that he could be facing at least 30 years in state prison was, at best, bizarre. That an attorney would intentionally hide the truth regarding a possible maximum sentence from his client because, "...it's not probative... I'm not going to tell my client he's looking at maximum numbers...," or because such information may be upsetting to a client, is inexcusable professional misconduct and clearly rises to the level of constitutionally ineffective assistance of counsel. Id. By failing to honestly and properly inform Delacruz of the maximum possible sentence, rather than giving his opinion or expressing his hopes, Cobb deprived Delacruz not only of effective assistance of counsel, but factual information on which he could reasonably evaluate a plea offer. Id.

Plea bargaining is a critical stage of a criminal proceeding. See Michigan v. Jackson, 475 US 625 [1986]. Delacruz was essentially prevented from properly evaluating his options because Cobb did not believe telling his client the truth was "probative" and believed it might be upsetting to his client. Delacruz was denied the ability to make a most crucial decision regarding his case; it is a defendant's choice whether to negotiate and accept a plea offer or go to trial, not an attorney's. It was Cobb's professional responsibility to provide Delacruz with professional advice regarding that decision. See Cardoza v. Rock, 731 F3d 169 [2nd Cir. 2013]. Instead, Cobb mislead and made misrepresentations to his client. While under People v. Rose, 57 NY2d 837 [1982], the Court of Appeals has held that the failure to explore a plea option is not, in and of itself, ineffective assistance of counsel, this Court finds that intentionally misleading one's own client regarding sentencing, does effectively deprive him of the opportunity to even explore a plea offer, and is, in and of itself, ineffective assistance of counsel. Millington v. Lee, supra.

The record further demonstrates that Cobb failed to investigate this case in any meaningful manner and prepare even the most basic defense for Delacruz. Based on his testimony at the 440 hearing, Cobb waived all of the pre-trial hearings (despite numerous issues Defendant claims could have been raised at those hearings), he likely did not review any Rosario material and Grand Jury minutes, admitted he failed to review the jury instructions/charges, failed to remind the Court to include certain specific instructions, failed to object to irrelevant and prejudicial testimony, and failed to use trial strategy and follow up on significant information that Defendant argues could have established Delacruz was not at the second incident. Cobb admitted he conducted no investigation or inquiry into the criminal backgrounds of the prosecution witnesses. Overall, it appears that Cobb had no trial strategy and no interest in any, as he presented no defense at trial for Delacruz. Based on his own testimony, it is clear to this Court that few of the actions he took during his representation of Delacruz were in his client's best interests. People v. Benveneto, supra, at 712.

Cobb claimed he designed a defense to establish Delacruz was not the shooter and had no gun during either of the two incidents on August 6, 2011; yet, it is evident from Cobb's testimony at the 440 hearing that he completely misapprehended the law concerning acting in concert.[FN10] He admitted during his testimony that he thought the People's witnesses established that his client was the shooter in both incidents—even though the People's witnesses established the exact opposite—that another individual was the shooter and had possession of the gun. His failure to request that the Court have Berrier charged as an accomplice resulted in Berrier's testimony, the only testimony, suggesting Delacruz was present at the second incident, admissible without corroboration.

The failure of an attorney to adequately prepare a defense for an accused may, in and of itself, constitute ineffective assistance of counsel without further proof of prejudice. People v. Oliveras, 21 NY3d 339 [2013]. As applied to Delacruz' case, prejudice may be assumed because the conduct complained of amounted to a complete denial of counsel at a critical stage, specifically the plea bargaining stage, and Cobb completely failed to subject the People's case to any meaningful testing. See United States v. Cronic, 466 US 648 [1984]; People v. Glasgow, supra. Cobb, by his own admission, failed to conduct any investigation and failed to interview witnesses who could have been valuable to the defense. A complete failure to conduct investigations and interviews cannot be excused as trial strategy, as claimed by Cobb, see Pavel v. Hollins, 261 F3d 210 [2nd Cir. 2001], nor can the failure to review and use Rosario and other documentary evidence be excused as trial strategy. Romplilla v. Beard, 545 US 374 [2005].

Cobb testified that he failed to investigate the prior and pending criminal charges against Pena and another witness, which might have been valuable to the defense. He admitted that he did not investigate or try to contradict Berrier's testimony that it took two and a half hours to travel by car approximately 11 miles from Liberty to Monticello. He failed to use prior inconsistent statements to cross-examine and impeach Pellegrino and failed to object and have stricken her testimony regarding Delacruz' alleged membership in a gang. He failed to object when a police officer testified that people at the scene said the same car (Delacruz' vehicle) was involved at both the first and second incidents. He failed to object when Pena indicated the same vehicle was used during both incidents. He failed to interview Steven Bristow, the shooter, who indicated he was prepared to waive his Fifth Amendment rights and testify at the trial. Cobb failed to discuss with Delacruz his right to testify at trial on his own behalf. An attorney's failure to allow his client to testify cannot be deemed harmless, because it is difficult for an appellate court to decide whether or not a jury would have found the testimony credible. Luce v. United States, 469 US 38 [1984]. Delacruz was barred from testifying in his own defense because Cobb would not accede to his request to testify. Owens v. United States , 483 F3d 48 [1st Cir. 2007].

Overall, Cobb failed to perform even the most minimal tasks to present a defense and challenge the People's case. This Court finds that taken as a whole, Cobb's failure to adequately prepare for trial, waiving of hearings, misleading and lying to his client regarding sentencing, and failure to make objections at trial demonstrate a failure to act in Delacruz' best interest and prejudiced this defendant. People v. Rivera, supra.

Based on the foregoing, it is

ORDERED that Defendant's motion to vacate the judgment pursuant to CPL §440 is granted in its entirety; and it is further

ORDERED that Defendant is to immediately be released from the care, custody and control of the New York State Department of Corrections and returned to the Sullivan County Jail, with the same bail conditions that were imposed prior to his conviction; and it is further

ORDERED that this matter has been placed on the pre-trial conference calendar for May 15, 2015, at 10:30 am, at which Defendant must be produced.

This shall constitute the Decision and Order of this Court.

DATED:April 21, 2015

Monticello, New York

____________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge & Surrogate

Footnotes

Footnote 1:Through discovery and testimony, it was learned that the girlfriend, 18-year-old Victoria Pellegrino, had either met Pena in a park, or through a friend, and gave him her phone numbers. She claimed to be three months pregnant (presumably by Defendant) at the time she met Ricardo Pena. She already had a young child by an unknown male, as well.

Footnote 2:Steven Bristow received a sentence of eight years in state prison.

Footnote 3:The record indicates that Cobb notified the Clerk of Court, by letter dated March 6, 2012 (three and a half months prior to the trial date), that he was retained by Defendant to represent him in this matter, and requested that all future papers and communications be sent to him as counsel. There is a substitution of counsel on record, dated March 2, 2012, indicating substitution of Cobb for Joel M. Proyect, Esq., who was assigned conflict counsel.

Footnote 4:The fax receipt indicates that the letter was successfully faxed to Cobb at 2:29 pm on June 21, 2012.

Footnote 5:Berrier was not charged as an accomplice or otherwise for participating in either incident.

Footnote 6:After almost 20 years as a felony Court trial Judge, the Court found much of Mr. Cobb's testimony disturbing.

Footnote 7:Steven Bristow, the shooter, negotiated a plea agreement with a sentence of eight years in state prison.

Footnote 8:The ADA's remark during summation regarding Pellegrino was, in fact, incorrect. Pellegrino testified before the Grand Jury that she told Delacruz to surrender because she was scared, because the police kept visiting her.

Footnote 9:The Grievance Committee for the Second Department somehow ultimately cleared Cobb of any attorney misconduct. Perhaps they Committee will revisit the matter when it receives a copy of this opinion.

Footnote 10:Cobb repeatedly stated during his testimony that he believed that in order for the jury to convict Delacruz as an accomplice, the People were required to established beyond a reasonable doubt that Delacruz actually possessed the gun and fired it. That was not the case.