People v Verni
Annotate this CaseDecided on December 18, 2013
Supreme Court, Queens County
The People of the State of New York v Michael Verni, Defendant.
2014/10
The defendant is represented by Allegra Glashausser, Esq. The People are represented by Assistant District Attorney Ushir Pandit of the Queens District Attorney's Office.
Stephen A. Knopf, J.
The defendant, Michael Verni, moves to vacate his judgment of conviction pursuant to CPL §440.10 (1)(h) claiming ineffective assistance of trial counsel. This Court conducted a hearing to determine whether a pre-indictment non-incarceratory plea offer was made and whether such offer was conveyed to the defendant. Additionally, this hearing was specifically expanded to determine whether a two-year jail offer was conveyed to the defendant. This hearing was conducted on July 23, 2013, October 1, 2013 and October 17, 2013. The defendant presented four witnesses at this hearing: Mr. Merrill Rubin Esq., ADA Sheila Horgan, ADA Frank Catarisano, and the defendant, himself. The People did not present any witnesses.
This indictment arose out of an incident that took place on November 22, 2009, in the county of Queens. On that date, the defendant was found sitting inside an automobile with a .22 caliber Derringer between his legs. At this time, the defendant had a gunshot wound to his chest. Two bullets were later found in the defendant's chest. The defendant admitted to a police officer that the gun was his and he had shot himself.
[*2]Procedural History
The defendant was arrested and ultimately indicted for criminal possession of a weapon in the second degree. A jury trial was conducted before this Court. Prior to trial, this matter was conferenced with the People, defense counsel and this Court to determine if there was a possibility of disposition. At that time, there was discussion related to a supposed prior pre-indictment offer of probation and a program by the People. Defense counsel indicated that he was not aware of such an offer but that had there been such an offer, his failure to convey such offer to the defendant would constitute ineffective assistance of counsel. Additionally, defense counsel stated, in sum and substance, that if there was a conviction, the defendant would be retaining new counsel to argue this claim.
The defendant proceeded to trial before this Court. On September 16, 2011, the defendant was convicted of criminal possession of a weapon in the second degree.
After his conviction, the defendant moved to set aside the verdict, pursuant to CPL §330.30. The defendant argued, among other things, that he received ineffective assistance of trial counsel because his lawyer failed to convey a plea offer presented by the People that included a mental health treatment component. On March 29, 2012, this Court denied the defendant's motion.
On April 20, 2012, this Court sentenced the defendant to a determinate prison term of three and one half years (the mandatory minimum) followed by a period of two and one half years of post-release supervision.
FINDINGS OF FACT
Mr. Merrill Rubin was the defendant's trial attorney in this case. He has been a practicing criminal defense attorney for more than 33 years; his practice includes cases in Queens County. He represented the defendant immediately after his criminal court arraignment until the conclusion of the trial. He did not represent the defendant at the sentencing of this matter.
Mr. Rubin testified twice at this hearing, being recalled after this Court expanded the hearing. In initially discussing plea offers, Mr. Rubin first advised the Court that there were some plea discussions but didn't recall exactly what they were. He recalled an offer that included a disposition of a felony with incarceration that was made prior to indictment. These discussions were with different assistant district attorneys. The attorney specifically recalled discussions with Assistant District Attorney Catarisano, Bureau Chief, that included a mental health component, whereby the defendant would have to [*3]admit to possessing the gun. He never took specific notes about the negotiations. He communicated these discussions to his client; as that was his practice, even though there was no specific firm offer. Mr. Rubin indicated that at the time of these discussions, the defendant was not interested in admitting that the gun was his. Mr. Rubin specifically recalled that in these discussions with ADA Catarisano, ADA Catarisano expressed sympathy for the defendant's problem in dealing with his wife and his girlfriend. Mr. Rubin repeatedly told this Court that he told the defendant specifically about the plea negotiations with ADA Catarisano. Mr. Rubin insisted the defendant was not interested in admitting that the gun was his and not was interested in jail time. The defendant would only consider a non-jail offer; such as a misdemeanor with a mental health component. Defense counsel was advised by the People that his client would have to admit that the gun was his if he wished to engage in plea bargaining. As to anything related to the defendant's mental health, Mr. Rubin did provide to the Office of the Queens District Attorney a letter from a psychologist about his client, indicating only that his client was not suicidal. This letter was not provided to show that the defendant needed mental health treatment. He remembered his client being offered a D felony with two years in jail. While Mr. Rubin felt perhaps he should have done a more forceful job in encouraging his client to plead guilty, it is his considered recollection that he communicated this incarceratory offer to the defendant and that the defendant rejected such offer.
Ms. Sheila Horgan was the assistant district attorney assigned to conduct the trial of the defendant's case. At the start of the trial, she had been with the Queens District Attorney's Office for three years. This case was her first felony trial. Ms. Horgan received this case about a month or two before the matter proceeded to trial. She reminded the Court of defendant's statements to police. ADA Horgan had reviewed the defendant's case, including the AP-6 status sheets that reflected his appearances in Part AP-6. (These AP-6 status sheets were admitted into evidence at this hearing). Ms. Horgan mistakenly thought that an offer had been made to the defendant with a mental health component. She based her mistake on a review of Part AP-6 notes made by her office which showed her office was awaiting paperwork from defense attorney as to the defendant's mental condition.
The status sheets reflected (in relevant part):
2/10/10- WAITING FOR DEFT'S SUBMISSIONS 3/25/10 - (redacted) ATTY HAS SUBMITTED NOTHING IN THE WAY [*4]OF DOCUMENTS AS TO WHY WE SHOULDN'T INDICT ON CPW.4/30/10 5/5/10 ; ON FOR OFFER. NO OFFER B/C DEF ATTY HAS NOT TURNED OVER PAPERWORK REGARDING DEF'S MENTAL CONDITION. HOWEVER, IN SPEAKING W/ DEF COUNSEL, THIS PAPERWORK M. NOT HELP B/C DEF IS CLAIMING HE'S NOT SUICIDAL BUT INSTEAD THAT HE WAS ROBBED AND IS STRESSED OUT. PLS ADJ FOR GJA.10/7/10 10/20 : CASE WAS NOT INDICTED B/C ON LAST COURT DATE DEFENSE COUNSEL TOLD FRANK THAT HE WANTED SOME MENTAL HEALTH PLEA. IF WE ARE TO EVEN CONSIDER THIS, HE WAS SUPPOSED TO WAIVE ALL THE WAY FROM THE TIME HE WAS ARRAIGNED. I CALLED DEFENSE COUNSEL AND HE DID NOT CALL ME BACK. WE WILL CONSIDER MENTAL HEALTH PLEA BUT HE NEEDS TO WAIVE.
ADA Horgan did not participate in the plea negations. However, after reviewing the paperwork, ADA Horgan testified that her prior in-court statement that a pre-indictment plea offer was made to the defendant with a mental health component was incorrect. She told this Court she based this change on discussions with ADA Zellner and ADA Catarisano as well as a more through review of the case status sheets.
ADA Francesco Catarisano, Bureau Chief, of the Queens County District Attorney's Office, recalled that he had spoken to the defense attorney about this case, once, in person. No offer was made. This assistant district attorney indicated that he was told by the defense counsel that the defendant was not interested in any plea. He was advised by the attorney that the defendant's position was that he was a victim; and that he was not interested in any mental health treatment. This conversation was on October 20, 2010 in Part AP-6. At that time, an offer to the defendant was made of a D felony and 2 years incarceration. There was discussion about a possible non-jail sentence for the defendant with a mental health component. ADA Catarisano was told by the defense attorney that the defendant would not plead guilty; that he was a victim of an attempted robbery.
The defendant insisted to this Court that his attorney never discussed any plea offer with him, certainly not a felony with two years incarceration. He claims that he would have taken a non-jail offer. At the time of these discussions, he was taking medication for sleep and for stress. He told the Court he was not aware of what his exposure was after a trial conviction. He stated he was not ready to admit that it was his gun, not even to himself. It was his position that he was the victim. He wanted [*5]his attorney to be more forceful with him, so that he would have entered into a plea. The defendant stated to this Court that he blamed his lawyer for not conveying the offer to him and not explaining what he would face after trial. However, the defendant repeatedly stated he was not able to admit it was his gun. In spite of this, the defendant insisted that he would have taken a two year jail disposition as he had enough money to pay his bills for two years.
CONCLUSIONS OF LAW
Criminal Procedure Law §440.10 mandates under what circumstances a conviction may be vacated. In relevant part: (1)At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:(h)The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.
It is the defendant's burden to prove by a preponderance of evidence, every fact essential to support this motion. See CPL §440.30 (6).
It is clear that the Sixth Amendment provides a defendant with the right to effective assistance of counsel. See, Strickland v Washington, 466 US 668 (1984). To show that his trial lawyer was ineffective under the Sixth Amendment, the defendant must show, at that outset, that his attorney committed errors so egregious that he did not function as counsel within the meaning of the Sixth Amendment. Additionally, the defendant must demonstrate that his lawyer's performance actually prejudiced him. See, Strickland at 678-688.
Under New York law, the constitutional requirement of effective assistance of counsel is satisfied 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...". See, People v Benevento, 91 NY2d 708, 7112 (1998). "However to prevail on a claim of ineffective assistance of counsel, the defendant must overcome the strong presumption that defense counsel rendered effective assistance...". See, People v Myers, 220 AD2d 461 (2d Dept. 1995).
"Meaningful representation by counsel includes the conveyance of accurate information regarding plea negotiations, including relaying all plea offers made by the prosecution...". People v Rogers, 8 AD3d 888, 890 (3d Dept. 2004). It is settled [*6]law that "...to prevail on his claim that he was denied effective assistance of counsel, defendant had the burden to 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, 814 (2005). See, also People v Goldberg, 33 AD3d 1018 (2d Dept. 2006); People v Sherk, 269 AD2d 755 (4th Dept. 2000). A fourth factor, that the disposition would have to be acceptable to the Court, is an issue that the People concede does not need to be determined insofar that the People do not question that a court, pre-indictment, would be willing to accept a disposition negotiated in this case.
It is clear that an attorney's failure to communicate a plea offer constitutes ineffective assistance of counsel. See, Missouri v Frye, ___US___, 132 S. Ct. 1399 (2012). However, such a finding must be based on objective evidence beyond the defendant's self-serving post-conviction testimony. See, eg United States v Gordon, 156 F3d 376, (2nd Cir. 1998).
In Missouri v Frye, supra, it was specifically held that defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Furthermore, the court held that in order to show Strickland prejudice, a defendant must also show a reasonable probability that he would have accepted the earlier plea offer. In Laffler v Cooper, ____US____, 132 S. Ct. 1376 (2012) the court held in part, that in determining Strickland prejudice, a court must consider whether or not counsel's ineffective advice led the defendant to reject the prosecution's plea offer.
Initially, this Court must determine what, if any, offers were actually made to the defendant: a disposition that was non-jail with a mental health component, a D felony with two years incarceration, both offers, or neither.
Disposition with Mental Health Component
A review of the testimony adduced at this hearing and an examination of the AP-6 case status sheets in evidence reflect that there was discussion about a possible disposition that included a non-jail sentence with a mental health component; however, no definite offer was actually made. In his testimony, Mr. Rubin indicated that he tried to get a non-incarceratory disposition for his client, but there was no documentation he could submit that would support that the defendant had any mental health issues, indeed, there was only documentation that the defendant was not suicidal. Mr. Rubin was never able to get the Queens District Attorney's Office to make such an offer as to the defendant. Even if they had, at that time the defendant was [*7]unwilling to admit that the weapon was his, maintaining he was the victim of an attempted robbery. ADA Catarisano, in his testimony at this hearing and in his affidavit, submitted prior to the hearing, indicated that there was never a pre-indictment firm offer' that included a non incarceratory disposition with mental health treatment, as the defendant refused to admit to the gun possession. This assistant district attorney asked the attorney to provide documentation about the defendant's mental health issues; none was ever provided. When ADA Horgan spoke to this issue she related that when she told this Court, prior to trial, that there had been a offer to the defendant that included mental health treatment, she was, in fact, mistaken, based on her misreading of the AP-6 notes. She became involved one month before this trial commenced, and was never a part of the pre-indictment plea negotiation process.
Mr. Verni, the defendant, maintained that his lawyer never discussed any plea offers with him; that he would have accepted an offer that did not include incarceration. The defendant admitted he was not ready to admit that the gun was his prior to this case proceeding to trial. Most importantly, the AP-6 status sheets do not reflect any firm offer with a non-jail disposition, specifically including mental health treatment.
Under these facts and circumstances, the defendant has failed to meet the first prong of the criteria set forth in Fernandez as to a non-jail offer; no such plea offer ever existed. Therefore, no such offer could even be conveyed by defense counsel to the defendant.
Disposition with D Felony and 2 years Incarceration
Turning to the issue that arose that resulted in this Court expanding this hearing, the defendant has sought to show that the defense attorney was ineffective for failing to convey an offer of a D felony with two years incarceration.
In reviewing the first factor delineated in Fernandez as to whether this plea offer was actually made, this Court determines that this specific offer of a D felony and two year jail time was offered. Specifically, the case status sheets in evidence reflect that on two separate dates an offer was made that included 2 years jail and a D felony. As such, this Court finds that the first factor in Fernandez was satisfied; this offer existed and was made.
The second factor is whether the defense attorney failed to inform the defendant of this offer and indeed, this Court determines that Mr. Rubin did convey this offer to the defendant.
However, the defendant fails to satisfy the third prong [*8]enumerated in Fernandez. It is clear that while this case was pending in Part AP-6, the defendant was not ready to accept responsibility for this crime; a requirement in this case for entering into a plea of guilty. While now the defendant suggests that 2 years jail would have been acceptable based on his finances, the fact remains that the defendant was not ready to admit that the gun was his. The defendant's candid desire for a lesser sentence is based on the reality, with the benefit of hindsight and the knowledge that he was indeed convicted after a jury trial, that the minimum sentence of three and one half years he is currently serving is greater than two years. Mr. Rubin's comment that it was his opinion that he should have done a better job explaining the sentence parameters after conviction does not show he was ineffective in explaining such sentencing parameters to the defendant; rather it is only reflective of Mr. Rubin apparently needlessly blaming himself in part for defendant's failure to accept the plea offer.
Ultimately, the testimony of the witnesses, including the defendant, reflect that the defendant was not ready to take any disposition, as he was not ready to accept responsibility for this crime, specifically admitting to possession of the firearm. As such, the defendant's claim fails as he does not meet the third prong of this test.
In conclusion, this Court determines that based on all the testimony adduced at this hearing, coupled with the exhibits in evidence, it is clear that no firm offer was extended to the defendant with mental health counseling and a non-incarceratory sentence. Additionally, while there was a pre-indictment offer of two years incarceration with a D felony made to the defendant, it is clear from all of the credible testimony presented at the hearing that not only was such offer conveyed to the defendant but that he was not interested in it. This Court finds that his attorney was not ineffective in attempting to negotiate a disposition for the defendant in this case, conveying such to him, or in advising him as to such disposition. The defendant has not proven by a preponderance of the evidence, every fact essential to establishing his claims herein.
Accordingly, this defendant's motion to vacate his judgment of conviction pursuant to CPL §440.10 (1)(h) is denied in all respects.
The foregoing constitutes the order, opinion and decision of this court.
_________________________
Stephen A. Knopf, J.S.C.
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