People v Shaw

[*1] People v Shaw 2007 NY Slip Op 51402(U) [16 Misc 3d 1112(A)] Decided on July 16, 2007 Supreme Court, Bronx County Price, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 26, 2007; it will not be published in the printed Official Reports.

Decided on July 16, 2007
Supreme Court, Bronx County

People of the State of New York,

against

Richard Shaw, Defendant.



9173/90

Richard L. Price, J.

On September 17, 1992, defendant was convicted, upon a jury verdict, of robbery in the first degree (Penal Law § 160.15[4]) and criminal possession of a weapon in the second degree (Penal Law § 265.03) and sentenced, by me, as a persistent violent felony offender, to two concurrent prison terms of 25 years to life. By motion submitted on March 2, 2007, defendant moves pro se to vacate his conviction pursuant to CPL 440.10(1)(h).

Factual and Procedural Background

On November 10, 1990, defendant and his brother, Alexander Shaw, entered a C-Town Supermarket at 630 East 169th Street in the Bronx and removed $800 from a cash register at gunpoint. Shots were fired by Alexander Shaw during the incident. Under Indictment 9173/90, defendant and his brother were charged with robbery in the first degree (Penal Law § 160.15[2],[4]), criminal possession of a weapon in the second degree (Penal Law § 265.03), criminal possession of a weapon in the third degree (Penal Law § 265.02[4]), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1]). Alexander Shaw was also charged with attempted murder in the second degree (Penal Law § 110/125.25[1]),

Plea Offers and Trial

A joint trial for defendant and Alexander Shaw commenced before this Court on July 20, 1992. On that date, prior to jury selection, the prosecutor offered defendant 11 to 22 years.[FN1] The following day, on July 21, 1992, the following colloquy occurred:THE COURT: Get the panel, please.

Counsel, this is a good opportunity to discuss with your clients the offers that were offered yesterday. I don't know if the prosecutor is going to keep them.

PROSECUTOR: They're withdrawn if the defendants are not taking the pleas now. [*2]

THE COURT: Those offers are withdrawn. I'm sure you have discussed it and if you haven't, please do with your clients what their exposure is on this charge.

(short pause)

THE COURT: Withdrawn.

(7/21/92: 2).

On July 29,1992, during the People's case, the Court inquired again about the possibility of resolving the case with pleas. The following colloquy occurred:

THE COURT: Bring in the jury.

For the record, I always inquire as we get closer and closer. Do the People have a offer to the defendants?

PROSECUTOR: As to defendant Richard Shaw the offer is 17 to life; as to Alexander Shaw 12 to 24.

THE COURT: Counsel, are your clients interested?

MR. SPELLMAN (Defendant's counsel): No.

MR. BLITZ (Alexander Shaw's counsel):No

(7/29/92: 3).

On August 3, 1992, the jury convicted defendant of robbery in the first degree (Penal Law § 160.15[4]) and criminal possession of a weapon in the second degree (Penal Law § 265.03).[FN2] On September 17, 1992, defendant was sentenced, as a persistent violent felony offender, to two concurrent terms of 25 years to life. Defendant filed a timely notice of appeal on September 30, 1992.

Defendant's Appeal and Motions to Vacate Conviction

On January 6, 1993, defendant moved to vacate his conviction pursuant to CPL 440.10(1)(h) on the ground that he was denied effective assistance of counsel. Defendant argued that his counsel was ineffective for, inter alia, failing to call defendant's three alibi witnesses at trial.[FN3] [*3]

By decision dated March 9, 1993, this Court denied defendant's motion to vacate his judgment of conviction summarily, concluding that "counsel provided meaningful representation" (Decision at 2). The Court noted that counsel "participated in the trial, vigorously cross-examining prosecution witnesses, and arguing for his client before this Court" (Decision at 3). The Court found that denial of defendant's motion was also proper on procedural grounds pursuant to CPL 440.10(2)(b) since sufficient facts appeared on the record to permit adequate review of the ineffective assistance claim on appeal (Decision at 3).

On April 10, 1993, defendant sought leave to appeal from the denial of his CPL 440.10 motion. On June 24, 1993, Appellate Division Justice Israel Rubin granted defendant leave to appeal from the denial of his CPL 440.10 motion and ordered that it be consolidated with his direct appeal.

On March 11, 1993, Phillip Weinstein, Esq., moved to be relieved as appellate counsel because defendant had alleged that the Legal Aid Society had rendered ineffective assistance of trial counsel in his CPL 440.10 motion. On April 13, 1993, the Appellate Division, First Department, granted Mr. Weinstein's motion and assigned Brian J. Kearney, Esq., to represent defendant on appeal.

In July 1995, Mr. Kearney filed a brief on behalf of defendant with the Appellate Division. Ineffective assistance of counsel was not raised as one of the issues in the brief.

On August 4, 1995, defendant sought permission to file a pro se supplemental brief which included five additional claims, including ineffective assistance of trial counsel. Point Two of the supplemental brief argued that defendant's trial counsel was ineffective for failing to secure alibi witnesses. Point three of the supplemental brief argued that defendant's trial counsel was ineffective for failing to request appropriate jury instructions.

By pro se motion dated October 17, 1995, defendant moved in the Appellate Division for an order denying his application for permission to file a pro se supplemental brief, striking the brief filed by appellate counsel, and reassigning new appellate counsel to consolidate his CPL 440.10 motion with his direct appeal.

On November 9, 1995, the Appellate Division granted defendant's earlier motion to submit a pro se supplemental brief.

By order dated October 1, 1996, as corrected October 10, 1996, the Appellate Division unanimously affirmed defendant's conviction (People v Shaw, 232 AD2d 174 [1st Dept. 1996]). The Appellate Division found that the summary denial of defendant's motion to vacate his judgment of conviction based upon ineffective assistance was proper.

On January 3, 1997, the Court of Appeals denied defendant leave to appeal (People v Shaw, 89 NY2d 942 [1997]).

By pro se papers dated December 22, 1997, defendant moved pursuant to CPL 440.10(1)(h) and 440.30(5) to vacate his judgment of conviction. Defendant argued that his trial counsel was ineffective by failing to preserve those issues raised by appellate counsel, by failing to present an alibi defense, by not requesting a missing witness charge, and by not requesting an adverse witness charge because of a missing 911 tape. By decision and order dated July 6, 1998, this Court denied defendant's motion. By pro se motion papers dated July 29, 1998, defendant sought leave to appeal from the denial of his CPL 440.10 motion. On November 12, 1998, the Appellate Division (Andrias, J.) denied defendant permission to appeal the denial of his CPL [*4]440.10 motion.

By pro se motion filed October 19, 1998, defendant sought a writ of error coram nobis on the ground that appellate counsel performed ineffectively by failing to raise the claim of ineffective assistance of trial counsel on direct appeal.

On March 30, 1999, the Appellate Division denied defendant's writ of error coram nobis (People v Shaw, 259 AD2d 1058 [1st Dept. 1999]).

On December 21, 2001, the Southern District of New York denied defendant's petition for habeas corpus relief, finding that defendant's counsel provided effective assistance under the federal standard of review (Martin, J.) (Shaw v Artuz, 1001 WL 1645933 (S.D.NY).

By pro se motion papers notarized December 5, 2006, defendant made the instant application to vacate his judgment of conviction on the ground of ineffective assistance of counsel based upon his counsel's failure to provide "professional advice" during the plea stage. The People submitted their opposition papers on February 22, 2007. By papers notarized on April 3, 2007, defendant responded to the People's opposition papers.

Conclusions of Law

Defendant argues that there is a strong probability that he would have accepted the plea offer of 11 to 22 years had his attorney properly advised him. While he acknowledges that the plea was offered to him, he maintains that the offer was made by the Court, and that his attorney "never sat down to explain, convey, or persuade him to take a plea" (Motion at 9). Defendant claims that he did not raise this argument on appeal or in his previous motions because he was unaware, until recently, of the Second Circuit's ruling in Boria v Keane, 83 F.3d 48 [2d Cir. 1996], clarified on rehearing 90 F.3d 36, corrected op. 99 F.3d 492 [2d Cir. 1996], cert. denied 521 US 1118 [1996]). In Boria v Keane, supra, the Second Circuit Court of Appeals held that an attorney's failure to give any advice regarding the advisability of accepting a plea offer constituted ineffective assistance of counsel. Defendant maintains that a hearing is necessary to resolve the issues of whether his counsel conveyed the plea offer to him and discussed the advisability of accepting it.

A defendant has a right to effective assistance of counsel during the plea process under both federal and state law (see Hill v Lockhart, 474 US 52 [1985]; People v Ford, 86 NY2d 404 [1995]). To prevail on a claim of ineffective assistance of counsel based upon a defense counsel's failure to advise the defendant with respect to a plea offer, a defendant must demonstrate "that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer" (People v Fernandez, 5 NY3d 813 [2005]; People v Goldberg, 33 AD3d 1018 [2d Dept. 2006]).

Defendant's claim that a defense counsel's failure to discuss the advisability of accepting the plea constitutes ineffective assistance is not supported by any binding authority, While defendant relies on Boria v Keane, supra to support his claim, a lower federal court's interpretation of a constitutional question is not binding on this Court (see People v Kin Kan, 78 NY2d 54 [1991]).[FN4] [*5]

Defendant also relies upon the ABA Standards for Criminal Justice Prosecution Function and Defense Function (ABA Standards). Specifically, he relies upon ABA Standard 4-5.2, "Control and Direction of the Case," which provides as follows in pertinent part:

a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel include:

(i) what pleas to enter;

(ii) whether to accept a plea agreement;

The ABA Standards "represent the prevailing norms of criminal defense practice" (People v Henriquez, 3 NY3d 210, 226 [2004]). As observed in Strickland v Washington (466 US 668 [1984]), however, the ABA Standards are "guides to determining what is reasonable, but they are only guides" (466 US at 688). The Court ruled that judicial evaluation of an attorney's performance must be based upon all of the circumstances (Id.). Thus, while ABA Standard 4-5.1 recommends a "full consultation" between defense counsel and his client about whether to accept a plea, that practice merely represents "the prevailing norm." Accordingly, depending on the circumstances of the case, an attorney's failure to discuss the advisability of taking a plea with a client does not necessarily constitute ineffective assistance.Defendant also points to Ethical Consideration 7-7 of the Code of Professional Responsibility, which states in pertinent as follows:

A defense lawyer in a criminal case has the duty to advise the client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and what plea should be entered and whether an appeal should be taken.

(EC 7-7 [1979]). The Code's ethical strictures do not have the status of decisional or statutory law, however (see Matter of Weinstock, 40 NY2d 1, 6 [1976]).

The colloquy between the Court and defense counsel on July 21, 1992 and July 29, 1992 suggests that defense counsel discussed the plea offer with the defendant since he was directed to do so by the Court. Nonetheless, since there are questions of fact as to whether defense counsel discussed the advisability of accepting the plea with defendant, in the interest of justice, the Court will grant a hearing on defendant's motion even though the authority he relies upon is not binding on this Court. At the hearing, defendant will have the burden of establishing that his counsel failed to discuss the plea offer with him and that he would have accepted the plea had his attorney properly advised him (see People v Fernandez, supra at 814; People v Howard, 12 AD2d 1127 [4th Dept. 2004]; People v Rosenthal, 304 AD2d 418 [1st Dept. 2003]). Defendant must establish that he would have accepted the plea by "objective evidence" (see People v Fernandez, supra; 5 NY3d at 814). Accordingly, for the foregoing reasons, defendant's motion to vacate his conviction is granted to the extent that a hearing will be held on his limited ineffective [*6]assistance of counsel claim.

This hearing is set for August 7, 2007 in Supreme Court, Part T16 at 10:30 a.m. The People are to have the defendant produced on that date.

This shall constitute the Decision and Order of the Court.

Dated:Bronx, New York

July 16, 2007

E N T E R

_________________________

Richard Lee Price, J.S.C.

Footnotes

Footnote 1:Defendant states that the hearing court offered him a plea of 11 to 22 years immediately prior to the pretrial hearings on April 13, 1992 (Defendant's motion at 14).

Footnote 2:Alexander Shaw was convicted of attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree (8/3/92:132).

Footnote 3:Defendant argued that he disagreed with his attorney's decision not to call alibi witnesses and told him,"he didn't want to serve time for something he didn't do" (Affidavit in Support of Defendant's January 6, 1993 Motion to Vacate Conviction, at 2).

Footnote 4: The First Department has not expressly ruled on whether a defense counsel's failure to discuss the advisability of accepting a plea with a client constitutes ineffective assistance. In People v Cross, 262 AD2d 223 [1999], however, in the course of rejecting a defendant's claim that his plea was coerced by his attorney, the First Department noted an attorney's "obligation to render advice concerning the strength of the prosecutor's case,"citing Boria v Keane, supra; see also, People v Rosenthal, 304 AD2d 418 [1st Dept. 2003]).