People v Shaw

[*1] People v Shaw 2008 NY Slip Op 50328(U) [18 Misc 3d 1136(A)] Decided on February 14, 2008 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2008
Supreme Court, Bronx County

The People of the State of New York,

against

Richard Shaw, Defendant.



9173/90



The appearances are as follow:

John T. Yu, Esq.

Attorney for Defendant

ADA Dana Levin

ADA Rafael Curbelo

Bronx District Attorney's Office

Richard L. Price, J.

On September 17, 1992, defendant was convicted after a jury trial 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, as a persistent violent felony offender, to two concurrent terms of imprisonment of 25 years to life. Defendant previously moved pro se to vacate his conviction pursuant to CPL 440.10(1)(h) on the ground that he was denied his right to effective assistance of counsel. In the present motion, defendant alleged that his trial counsel failed to convey a plea offer of 11 to 22 years to him and also failed to discuss the advisability of taking that plea. The defendant argued that pursuant to Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), cert. denied 521 US 1118 (1997), vacatur of his conviction and a new trial is warranted. In Boria, the Second Circuit Court of Appeals held that an attorney's failure to give any advice regarding the wisdom of accepting a plea offer constituted ineffective assistance of counsel.[FN1]

By decision dated July 16, 2007, this Court ordered a hearing on the limited issue of whether defendant received effective assistance during plea negotiations. Despite the absence of [*2]binding authority[FN2] to support the contention that a defense counsel's failure to discuss the advisability of accepting a plea with a client constitutes ineffective assistance, the Court concluded that a hearing was warranted in the interest of justice to explore whether defendant's trial counsel conveyed the plea offers to him and discussed the advisability of accepting them.

THE HEARING

A hearing was held before this Court on September 27, 2007, October 1, 2007, October 22, 2007, December 11, 2007, December 20, 2007 and January 3, 2008. The defendant, his trial attorney, Christopher Spellman, Esq. of the Legal Aid Society, and Assistant District Attorney Cathy Davis testified at the hearing.

Richard Shaw, the defendant, testified that he met his trial attorney, Christopher Spellman, Esq. the first time the case appeared in Supreme Court following his arraignment. Although he was initially represented by another attorney from the Legal Aid Society, Michael Spiegel, Esq., and wanted Mr. Spiegel to continue to represent him, Mr. Spellman advised the defendant that he was assigned to the case because of his experience and would represent him from now on (H:26). The defendant made it clear from the outset to Mr. Spellman that he was not guilty of the crimes he was charged with and intended for the case to go to trial (H:27, 28). During the pendency of the trial, the defendant was arrested for a robbery in Brooklyn. After his new arrest, the defendant perceived that Mr. Spellman's attitude toward him changed and he was no longer interested in the case (H:44). The defendant testified that he became increasingly angry and frustrated that Mr. Spellman would not discuss the case with him prior to each court appearance and began refusing to come to court until he saw Mr. Spellman (H:47). The defendant testified on rebuttal that one occasion he removed all his clothing while he was in his holding cell and refused to put on his clothes until Mr. Spellman came to the cell and spoke to him (H:232). However, he omitted any reference to this most unusual occurrence when he testified on direct examination about his troubled relationship with Mr. Spellman. The defendant testified that he heard the Court make plea offers during the course of his case but was mistaken when he stated in his motion that the court make him a plea offer to him of 11to 22 years (H:75-76). After reviewing the minutes on a court appearance on July 23, 1992, the defendant conceded that the offer of 11to 22 years was made to his brother and codefendant in the instant case, and acknowledged that all plea offers made to him on the record involved a life sentence (H:83-84). The defendant further testified that at no time during any of the stages of his representation did Mr. Spellman every convey any plea offer to him or discuss with him whether it was advisable to accept any plea in this case (H:60, 68, 74). The first time the defendant learned that an offer of 8 to life had been made was when he was produced for the instant hearing and was told by his current counsel that such an offer was noted on Mr. Spellman's file (H: 69). In addition, he alleges Mr. Spellman never discussed with him his status as a persistent violent felony offender and it was not until his sentencing that the learned he faced a maximum prison term of 25 years to life (H:75). The defendant testified that had he been aware of the consequences of his status as a persistent violent felony offender and the fact that he was facing a sentence of 25 years to life, he would have accepted the plea offer of 8 years to life despite his [*3]claims of innocence (H:76). The defendant testified that with respect to his Brooklyn case, he accepted a plea offer of 6 years to life concurrent with any time he would get on the Bronx case, on a date prior to the start of his trial in this matter (H:51-52). At a later point in the hearing, however, after reviewing the plea minutes in defendant's Brooklyn case, defense counsel conceded that the defendant did not plead guilty on the Brooklyn case until after he was sentenced on this case (H:161).

Christopher Spellman testified that he has been an attorney with the Legal Aid Society for more than thirty years and had never been censured by the New York State Bar Association or any disciplinary committee (H:166, 168). He began his representation of the defendant on April 9, 1991, and continued to represent him until the case concluded. Mr. Spellman testified that while he did have an independent recollection of the facts of the defendant's case and his trial, he did not recall any specific plea offers made by the People to the defendant but had noted on his file offers of 15 years to life on January 10, 1991, and 8 years to life on July 16, 1992 and July 20, 1992 (H:172). Mr. Spellman remembered that the defendant was not interested in taking a plea, especially one that involved a life sentence (H:191-92). Mr. Spellman did not recall any animosity in his relationship with the defendant and denied ever seeing the defendant naked in a holding cell (H:211). Mr. Spellman testified that he always relayed all plea offers made to his clients and advised them of the desirability of the offers, even if a particular client had previously indicated he was not interested in taking a plea, and that he was sure that he did that in this case (H:198, 223). Mr. Spellman further testified that he always discussed a client's criminal history and predicate status, and while he couldn't remember the particular details of the conversation with the defendant, he was sure that he did so in this case (H:199, 224).

Assistant District Attorney Cathy Davis testified that she had worked for the Bronx District Attorney's Office for twenty years and was the attorney who prosecuted the case against defendant and his brother. She did not recall any open hostility between Mr. Spellman and defendant (H:260). ADA Davis had an independent recollection of conveying an offer of 15 years to life to Mr. Spellman before the pretrial hearings, but did not remember the exact date the offer was made (H:255, 257). She also recalled conveying an offer of 17 years to life prior to jury selection (H:257). When the Court placed the plea offers on the record and directed counsel to discuss the offers with defendant, ADA Davis observed Mr. Spellman and defendant speaking to each other, but could not hear what they were saying (H:262). She did not recall ever making an offer of 8 years to life (H:256).[FN3]

DISCUSSION

At a hearing on a motion pursuant to CPL 440.10(1), a defendant has the burden of proving by a preponderance of the credible evidence every fact essential to support the motion. CPL 440.30(6). In order to prevail on his claim of ineffective assistance of counsel, the defendant has the burden to establish that his trial counsel failed to discuss the plea offer with him and that he would have accepted the plea had his attorney properly advised him. People v. Fernandez, 5 NY3d 813, 814 (2005); People v. Howard, 12 AD3d 1127 (4th Dept. 2004); People v. Rosenthal, 304 AD2d 418 (1st Dept. 2003). The defendant must establish that he would have [*4]accepted the plea by "objective evidence." People v. Ferndandez, supra at 814.

Preliminarily, the Court notes the issues ultimately raised at the hearing were different from those raised in the defendant's motion to vacate his conviction. In the motion, the defendant asserted that counsel was ineffective for failing to discuss with the advisability of accepting a guilty plea of 11 to 22 years, whereas at the hearing the defendant conceded that such an offer was made to him, and argued that counsel was ineffective for failing to relay a plea offer of 8 years to life, for failing to advise him of the consequences of being a persistent violent felony offender and for failing to discuss with him the advisability of taking the plea offer in light of his status as a persistent violent felony offender.

In order for the defendant to meet his burden as to the issues raised at the hearing, the Court must first find the defendant's hearing testimony credible. Under the circumstances of this case, the Court concludes that the defendant's hearing testimony is simply not credible. First, it is undisputed that the defendant testified untruthfully at the hearing that he pled guilty with regard to his Brooklyn indictment while the instant case was still pending. The defendant claimed that part of the reason why he would have taken the plea offer of 8 to life, if he had been aware of such offer and had it been properly explained to him, was that he had already accepted an offer of 6 to life in Brooklyn. This entire line of testimony proved to be false when it was revealed at the hearing that defendant did not actually plead guilty in Brooklyn until months after he was sentenced in this case. Other portions of the defendant's testimony also strained credulity. On direct examination, the defendant testified extensively about his hostile relationship with Mr. Spellman, including his many refusals to come to court until Mr. Spellman first spoke to him. However, he failed to mention that he once stripped naked in his cell in protest of Mr. Spellman's failure to see him prior to a court appearance and only related this certainly memorable event when he testified on rebuttal. The Court credits Mr. Spellman's testimony that such event never occurred.

In addition, the defendant's claim that he did not learn of the offer of 8 to life until he was produced for the instant hearing is belied by the record. The minutes of the July 23, 1992 proceeding indicate that the Court stated on the record: "Counsel, I understand that your clients a couple of days ago actually rejected an offer of eight to life and five to ten" (T:174) This is corroborated by Mr. Spellman's file which indicates that an offer of 8 to life was made and rejected by the defendant on July 20, 1992 (H:172). The minutes also reveal on several occasions that the Court directed counsel to speak with their clients about the plea offers which had been made and both the Court and A.D.A. Davis observed Mr. Spellman and the defendant conversing with each other in response to the Court's direction. While ADA Davis did not recall making an offer of 8 year to life to defendant, she did not testify that such an offer was never made.

Moreover, the defendant's motion to vacate his conviction contains several serious factual errors and omissions. In the motion, the defendant incorrectly stated that he was offered a plea of 11 to 22 years. Even more significant is the fact that the defendant failed to assert in the motion that counsel did not advise him of his sentencing exposure as a persistent violent felony offender. The defendant raised ineffective assistance of counsel claims in several prior unsuccessful post-conviction proceedings, e.g., his appeal, two prior motions to vacate his conviction pursuant to CPL 440.10, and a federal writ of habeas corpus. It is noteworthy that in none of these prior [*5]post-conviction applications did the defendant ever allege that counsel failed to advise him of the consequences of his status as a persistent violent felony offender.

In contrast to the defendant's testimony, the Court finds Mr. Spellman's testimony to be forthright and credible. Mr. Spellman testified that he relayed all plea offers made to the defendant in this case, that he discussed the advisability of taking such offers and also discussed the defendant's status as a persistent violent felony offender. While he candidly stated that he could not remember the dates these conversations took place or the precise details of the conversations, Mr. Spellman testified that he always relayed plea offers, discussed a client's criminal history with him and gave advice as to whether a client should accept a plea and is "sure" that he did so in this case.

In sum, the Court finds that the defendant has failed to meet his burden of establishing that trial counsel failed to relay any plea offers and/or failed to discuss the advisability of accepting offers actually made. The Court further finds that the defendant failed to establish that counsel never advised him of the consequences of

his status as a persistent violent felony offender. The only reasonable conclusion the Court can draw based upon the credible evidence presented at the hearing is that the defendant declined to accept any of the plea offers made in this case because he wished to proceed to trial and was unwilling to accept any plea offer which contained a life sentence. The defendant's motion to vacate his conviction is accordingly denied.

This opinion constitutes the decision and order of the Court.

Dated: Bronx, New York

February 14, 2008

E N T E R

_________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:In addition to Boria, supra, defendant relied upon ABA Standard 4-5.1 of the ABA Standards for Criminal Justice Prosecution Function and Defense Function, which recommends a "full consultation" between defense counsel and his client about whether to accept a plea, and Ethical Consideration 7-7 of the Code of Professional Responsibility, which provides that a defense counsel has a duty to advise his client about whether a plea offer appears desirable.

Footnote 2:A lower federal court's interpretation of a constitutional question is persuasive authority and not binding (see People v Kin Kan, 78 NY2d 54 [1991]).

Footnote 3:ADA Davis testified that while she had recommended 8 years to life, the plea board rejected her recommendation and replaced it with 15 years to life (H:251).