People v Cleary

[*1] People v Cleary 2004 NY Slip Op 50158(U) Decided on March 17, 2004 Criminal Court Of The City Of New York, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2004
Criminal Court Of The City Of New York, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

GAIL CLEARY DEFENDANT



Docket Number: 2002NY038090 Appearances of counsel:



New York County District Attorney

One Hogan Place

New York, NY 10013

by: ADA Matthew Rosen

Dershowitz, Eiger & Adelson, PC

220 Fifth Avenue, Suite 300

New York, NY 10001

by: Nathan Z. Dershowitz

Robert M. Stolz, J.

Defendant was tried before this court without a jury and was convicted of attempted petit larceny (PL §110/155.25). She now moves to vacate her conviction pursuant to Criminal Procedure Law § 440.10 upon the ground that she was denied effective assistance of counsel. In support of her motion, defendant essentially alleges that her attorney's representation was deficient in two respects.

First, she alleges that counsel failed to convey to the court and the People her desire to accept a purported plea offer and, instead, continued with the trial against her instructions. She claims that her counsel did this because he had a monetary interest in pursuing a civil action on her behalf and that the likelihood of success of any such civil action would be enhanced by an acquittal in the criminal case. Second, she alleges that counsel's preparations for and conduct of her defense at trial were constitutionally inadequate.

Initially, the court must determine, pursuant to CPL §440.30, whether the motion can be decided on written submissions without a hearing. To be entitled to a hearing, defendant must show that the nonrecord facts sought to be established are material and would entitle her to relief. People v Satterfield, 66 NY2d 796 (1985). A hearing is not warranted where the motion court has sufficient facts before it to make an informed decision on the merits. People v Miles, 297 AD2d 564 (1st Dept., 2002). Where defendant's unsupported allegations are thoroughly refuted by trial counsel's detailed affirmation, a motion alleging ineffective assistance of counsel may properly be denied without a hearing. People v Sussman, 298 AD2d 205 (1st Dept., 2002). [*2]

The court has before it a substantial set of motion papers, including an affirmation from the current defense counsel with five attached exhibits, as well as a reply affirmation from defense counsel with ten exhibits attached. The defendant, Gail Cleary, who is an attorney admitted to practice in New York State, has supplied a detailed affidavit as well as a reply affidavit. The defendant's father has also supplied an affidavit. In addition, defense counsel has filed a memorandum of law and a reply memorandum of law in support of the motion. The Assistant District Attorney who tried this case has filed an affirmation in response to the motion with ten exhibits, including a detailed affirmation from defendant's trial counsel in which he states that he made repeated, although unsuccessful, attempts to convince the People to offer an adjournment in contemplation of dismissal. He further affirms that the defendant never instructed him to enter a plea to disorderly conduct; that he had detailed discussions with the defendant concerning the risks of going to trial and the consequences of a criminal conviction; that defendant had expressed satisfaction with his representation; that he never had a financial agreement or retainer arrangement with anyone regarding a civil claim against Federated Department Stores in this case; that pursuing a civil claim was the defendant's idea and that the defendant instituted a civil action pro se; that he subpoenaed Federated's case file, hired a private investigator, met or spoke with three Assistant District Attorneys about this case; that he thoroughly discussed the case with the defendant, explaining the possible positive and negative outcomes; that he made no guarantees as to the admissibility of evidence, the testimony of witnesses or the outcome of the case; that he filed a written request for a bill of particulars, a written demand for discovery, a written omnibus motion as well as a supplemental affirmation and made oral motions in limine before the trial court; and that the decision not to introduce a videotape was made by the defendant against his advice. Finally, and not insignificantly, this court presided at the non-jury trial of this case and observed the representation provided to the defendant.

A review of this record and these submissions presents sufficient facts for the court to make an informed decision on the merits without a hearing. Although the defendant makes allegations concerning a plea which are supported by the affidavit of defendant's father, those allegations do not require a hearing since, even if true, the allegations would not make out a claim of ineffective assistance.

It is the well-settled law of New York that the effective assistance of counsel is provided by "meaningful representation" when viewed in light of the evidence, the law, and the circumstances of each particular case. People v Ford, 86 NY2d 397, 404 (1995), citing People v Baldi, 54 NY2d 137, 147 (1981)). The test of an attorney's effectiveness is not perfect representation but reasonable competence. People v Modica, 64 NY2d 828, 829 (1985). To prevail on an ineffective assistance claim the defendant must overcome the strong presumption of competent representation (People v Diaz, 157 AD2d 569 (1990), citing Strickland v Washington, 466 US 668 (1984)) and demonstrate that she was deprived of a fair trial by less than meaningful representation. People v Flores, 84 NY2d 184, 187 (1994), citing People v Benn, 68 NY2d 941, 942 (1986), revd. on other grounds by Flores v Demskie, 215 F 3d.293 (2d Cir., 2000). Similarly, Under the United States Constitution, a defendant must show that counsel's performance was deficient and that the deficiency in performance prejudiced the defendant. Ford at 405, citing Strickland. Strickland articulates the Federal standard for attorney performance to be that of [*3]"reasonably effective assistance". Under either formulation, mere disagreement with defense strategies or trial tactics is insufficient to establish an ineffective assistance claim. People v Cortez, 296 AD2d 465 (2d Dept., 2002), citing Benn, supra; People v Satterfield, 66 NY2d 796 (1985). "It is not for [the] court to second-guess whether a course chosen by ...counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation." Satterfield at 799-800. In the context of a guilty plea, a defendant must demonstrate that the advice of counsel was not "within the range of competence demanded of attorneys in criminal cases". Strickland at 687, quoting McMann v Richardson, 397 US 759, 770-771 (1970). In assessing an ineffective counsel claim, the court must be mindful that "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions". Strickland at 691.

Defendant alleges that counsel was ineffective because he failed to convey her desire to plead guilty to disorderly conduct during trial. Prior to trial, the defendant, an attorney, had consistently rejected any plea offer and steadfastly maintained her innocence. In his affirmation, trial counsel denies ever having been instructed by defendant to enter a mid-trial plea to disorderly conduct on her behalf. Moreover, regardless of whether or not such an instruction had been given and whether or not it had been acted upon, such an offer was simply no longer available to the defendant once the trial had begun. This fact is clearly established by the affirmation of the Assistant District Attorney who tried the case and is entirely consistent with the court's experience. Having failed to accept an offer while it was available, and having chosen to go to trial, defendant cannot now complain about any action or inaction by trial counsel concerning a non-existent offer. In short, the defendant did not accept a plea offer when it was available but rather knowingly exercised her right to go to trial. Defendant further alleges that defense counsel failed to act on her instruction to enter a guilty plea to disorderly conduct during trial because to do so would be contrary to his economic interest in a fee arrangement involving the representation of defendant in a civil lawsuit based on the same incident. Not only is this allegation irrelevant due to the unavailability of any offer, it is also contradicted by documentary proof provided by the People that defendant initiated such a lawsuit pro se.[FN1] (See People's Affirmation Exhibit 8 [application for index number] and Exhibit 9 [summons with notice].)

Finally, by any objective standard, defendant was provided effective assistance of counsel in the conduct of the trial. Counsel's preparations for and conduct of that trial more than adequately met both the "reasonably effective" Federal standard and the "reasonably competent" New York standard. He filed appropriate pre-trial motions, demands and requests, subpoenaed relevant materials, hired a private investigator, discussed the case with members of the District Attorney's office, raised relevant evidentiary objections before and during trial, ably cross-[*4]examined witnesses and presented a defense at trial. Defendant has not demonstrated that she was deprived of a fair trial by less than meaningful representation. Retrospective disagreement with strategies, tactics or the scope of possible cross-examination does not make out a claim of ineffective assistance of counsel. People v Flores, 84 NY2d 184 (1994).

The defendant's motion to vacate judgment pursuant to CPL §440.10 is hereby denied in all respects. This constitutes the decision and order of the court.

Copies of this decision are being mailed to the parties.

New York, New York JCC

Decision Date: March 17, 2004 Footnotes

Footnote 1:The People have also provided a copy of a Civil Index Inquiry for Supreme Court, New York County which shows that a Gail Cleary was a plaintiff in a lawsuit against the owners of Century 21 Department Store in 1996. (See People's Affirmation Exhibit 10) The People assert that this lawsuit stemmed from an injury the defendant allegedly suffered in that store. The People offer this exhibit in support of their contention that the defendant was familiar with the process of suing department stores and that her lawsuit against Federated was not initiated at the behest of defense counsel.