• Supreme Court, New York County, Criminal Term Part 93
  • 2314/2010
  • Judge Edward J. McLaughlin
Sections

Cite as: The People v. Jimenez, 2314/2010, NYLJ 1202644558367, at *1 (Sup., NY, Decided February 18, 2014)

2314/2010

Judge Edward J. McLaughlin

Decided: February 18, 2014

Decision on Motion to Vacate Judgment of Conviction

 

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The defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of ineffective assistance of counsel. He principally argues that defense counsel was ineffective during pretrial plea bargaining for not discovering that the defendant would be a mandatory persistent violent felony offender and required to receive a maximum sentence of life in prison if convicted of one of the violent felony offenses charged in the indictment. Upon the advice of counsel, the defendant declined a guilty plea offer and proceeded to trial unaware that he faced a minimum sentence of from sixteen years to life if convicted after trial. The jury found him guilty of two violent felony offenses, and this court imposed the minimum sentence of from sixteen years to life. The defendant contends that he was prejudiced by counsel's error because it prevented him from accepting a plea bargain to a nonviolent felony offense that would not have required a maximum sentence of life in prison.

To resolve contested factual issues raised by the defendant's motion, this court conducted an evidentiary hearing. Based on the evidence at the hearing, this court finds a reasonable probability that defense counsel would have obtained a guilty plea offer to a nonviolent felony offense if counsel had negotiated for such an offer, and that the defendant would have accepted it. However, the defendant was not deprived of the effective assistance of counsel, as a matter of law, because the proffered guilty plea would have been illegal, and defense counsel cannot be ineffective for not obtaining an illegal plea bargain (see Lockhart v. Fretwell, 506 US 364, 372 [1993]). Therefore, the defendant's motion is denied.

FACTS

The Arrest and Conviction

At approximately 8:10 P.M. on May 17, 2010, an off-duty police officer sitting in her private car on the Upper West Side of Manhattan watched two men severely pummel an old man and take a brown paper bag from him. She immediately reported her observations using her cellular telephone. The two men fled to a car occupied by the defendant, who drove the two men from the scene. Shortly thereafter, uniformed police officers stopped the vehicle and arrested the defendant and the other two occupants, Albert Garcia and Anthony Griffith. The police searched the interior of the car and found the paper bag by the rear seat and a loaded firearm underneath

 

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the middle area of the front passenger seat. The paper bag contained $109,000 in United States currency.

On May 18, 2010, the defendant was arraigned in criminal court on a felony complaint that charged him and the other two men with robbery in the first degree, two counts of criminal possession of a weapon in the second degree, criminal possession of stolen property in the second degree, and criminal possession of a weapon in the third degree. The defendant was represented by Michael J. Croce, Esq., who represented the defendant for arraignment only.

On May 19, 2010, Scott L. Fenstermaker, Esq., filed a notice of appearance in criminal court on behalf of the defendant.

On May 21, 2010, George Sheinberg, Esq., filed a notice of appearance in criminal court on behalf of the defendant.

On May 21, 2010, the grand jury voted to indict the defendant, and the two other men inside the car, Garcia and Griffith, charging them with two counts of criminal possession of a weapon in the second degree (PL 265.03 [1] [b] and [3]), and the defendant alone with criminal possession of a weapon in the fourth degree (PL 265.01 [1]).1

The indictment was filed on May 24, 2010.

The defendant has two prior violent felony convictions: a 2002 conviction for attempted criminal possession of a weapon in the third degree (PL 110/265.02 [4]), and a 2000 conviction for assault in the second degree (PL 120.05 [1]).

On March 30, 2011, the defendant and co-defendant Garcia appeared in court before another judge for a pretrial hearing. Before the hearing started, that court made a record of the guilty plea offer to each defendant. Co-defendant Garcia had been offered the opportunity to plead guilty and received a sentence of two years. The offer was to a lesser charge, and the prosecutor stated that the offer would be withdrawn when the hearing started. The court informed the co-defendant that, if he were convicted after trial, his sentence exposure was between three and one-half years and fifteen years, to be followed by a period of postrelease supervision. The co-defendant confirmed, through defense counsel, that he knew and had declined the plea offer.

Addressing the defendant, the court explained that the prosecutor was not consenting to a guilty plea to a lesser charge. The court stated that the defendant was a predicate violent felony offender, and that he faced a minimum prison sentence of seven years and a maximum prison sentence of fifteen years. The prosecution was offering a guilty plea to the minimum sentence of seven years.

 

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The court also informed the defendants that the third defendant in the case had already pleaded guilty and had made statements during his guilty plea allocution that would, as a practical matter, preclude him from being called as a trial witness for either defendant.

Addressing the defendant a second time, the court posited that the prosecution might agree to a guilty plea with a sentence of six years or six and one-half years. If the defendant did not wish to seek such a plea bargain, the court stated that the hearing would commence and informed the defendant, "If you lose, it's not necessarily 7. It could be as high as 15."

Speaking to both defendants, the court stated that if the motions to suppress were denied, each defendant would have to be tried separately because of a "Bruton problem." The court explained that each case would go to another court, but that the jury deciding guilt would hear about the robbery as the "background of the case," and that such evidence would not be "very favorable to your position" at trial, even though the trial judge would issue limiting instructions about that evidence.

The court concluded by noting that one defendant had made a confession that would be admissible at trial if not suppressed, and that for the other defendant the trial court would have to rule on how much of the defendant's prior criminal history would be admissible for impeachment if the defendant decided to testify.

When the court asked if either defendant was interested in negotiating a resolution, each defendant replied, "No."

The court conducted the pretrial suppression hearing and denied the motions to suppress. The court again asked the prosecution for the guilty plea offers to each defendant at this stage. The prosecutor's offer for each was a plea to the charge, with a sentence of seven years for the defendant, and five years for co-defendant Garcia. Each defendant declined the offer.

In June 2011, the defendant proceeded to trial in front of this court. The defendant was convicted, after a jury trial, of two counts of criminal possession of a weapon in the second degree (PL 265.03 [1] [b] and [3]). This court adjudicated the defendant to be a persistent violent felony offender and sentenced him to two concurrent indeterminate prison terms of from 16 years to life.

The CPL article 440 Motion and Hearing

In May 2013, the defendant, represented by appellate counsel, moved pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of ineffective assistance of counsel during plea bargaining. After the prosecution tiled a response to the defense motion, the defendant filed a pro se motion alleging that defense counsel was ineffective at the pretrial suppression hearing and at trial. This court ordered a hearing on the part of the motion alleging ineffective assistance of counsel during plea bargaining.

At the hearing, this court heard testimony from three witnesses: the defendant, his former paramour, Arieta Smith, and Assistant District Attorney William Mahoney.

 

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In May of 2010, Arieta Smith was romantically involved with the defendant. She had been in such a relationship with him for several years, including in 2002 when he was convicted of his second violent felony offense. She had retained George Sheinberg, Esq., as counsel for the defendant on his second violent felony case, and had paid counsel's fee. She retained attorney Sheinberg again, for the present case, at the defendant's request, which he made during a telephone call while in custody after his arrest. She paid the entire fee in installments. She also paid the defendant's bail and later used some of that money to pay for counsel's fee.

Smith testified that she was very involved with the defendant's case and that he valued her opinion. However, she testified that she never discussed the facts of the robbery charge or the gun charge with defense counsel. She also was never present at any conversation between the defendant and defense counsel about the facts of those charges. She testified that the defendant never asked defense counsel if he could negotiate a sentence lower than the prosecution's offer of seven years, and that the defendant never asked defense counsel about obtaining a guilty plea to a lesser charge as counsel had accomplished in the 2002 case and on which he had received three and one half years in prison for physically possessing a firearm. She also stated that she never asked defense counsel what was the maximum sentence that the defendant faced if convicted of possessing the firearm, and that she did not recall that the judge at the pretrial hearing had told the defendant, on the record during a court appearance that she had attended, that the defendant faced a maximum sentence of fifteen years if convicted after a trial. She also claimed that the defendant never told her that fifteen years was the maximum prison sentence that he faced.

Additionally, Smith maintained that although she was present when co-defendant Garcia pleaded guilty in exchange for a promised sentence of two years, she did not ask the defendant or defense counsel anything about Garcia's criminal history, why Garcia, who also did not have the firearm on his person when arrested here, accepted two years in prison, or the implications of the guilty plea for the defendant, whose criminal history she knew.

Lastly, Smith contended that defense counsel had instructed the defendant not to accept the guilty plea offer of seven years. She testified that counsel had stated that the case against the defendant was weak, that there was nothing to worry about, and that the defendant only should plead guilty to a one-year sentence, which would effectively be a sentence of time served.

The defendant testified that defense counsel had advised him not to accept the seven-year guilty plea offer. The defendant was on bail at the time and the conversation about the plea offer occurred outside the courtroom. According to the defendant, defense counsel stated that the only appropriate sentence would be one year. The defendant contended, however, that he never asked how such a resolution could be achieved. The defendant testified that defense counsel stated that the prosecution had a "weak" case and that winning the trial was a "possibility" and a chance worth taking. The defendant gave no testimony about whether he had asked, or counsel had advised, about the possible ramifications of losing after trial.

The defendant stated that defense counsel did not inform the defendant of the minimum and maximum sentenced that he faced under the indictment. Counsel never stated that the minimum sentence was from sixteen years to life, and that the maximum sentence was from

 

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twenty-five years to life. The defendant testified that he would have accepted the seven-year offer if he had know the true minimum and maximum sentences that he faced.

Assistant District Attorney William Mahoney, the bureau chief of the trial division to which defendant's case had been assigned. One of his duties as bureau chief was to approve or disapprove plea bargains for cases within his bureau. He provided his opinion about the likelihood that he would have approved of a plea bargain to a non-violent felony offense if he had known that the defendant was a potential mandatory persistent violent felony offender. He stated that he would not have approved of a plea bargain to a class D or E nonviolent felony offense. The maximum prison sentence for such a plea was 31/2 to 7 years, which Mahoney explained was too lenient due to the nature of the crime and the defendant's criminal history.

However, Mahoney stated that he would have been inclined to offer a guilty plea to a class C nonviolent felony offense, which carries a maximum sentence of 71/2 to 15 years. The facts of this case, which included a robbery of $109,000, supported a charge of criminal possession of a stolen property in the second degree, an offense that had been charged in the original felony complaint, or grand larceny in the second degree. He testified that he would not have considered such resolution with a sentence that was lower than from five to ten years in prison.

He "probably" would have been "inclined" to approve a guilty plea offer with a sentence of 71/2 to 15 years, but not much less than that. He had asked other supervisors in his office about whether they would approve of such a resolution, and had received "mixed responses." He sought the opinion of his own supervisor, with whom he would have had to consult before approving the offer. This person had a fairly strong feeling against approval "but didn't rule out the possibility" of approving such an offer.

Mahoney explained the procedure for achieving such a guilty plea. The defendant would be "rearrested" and arraigned on a "new felony complaint." Then the prosecution would file a superior court information. In Supreme Court, the indictment would be dismissed or the superior court information would be joined with the indictment and "certain counts" would be dismissed as a prerequisite to a guilty plea.

Mahoney further stated that entry of the guilty plea under those circumstances would create a legal issue. He described the procedure as "an end run around the sentencing restrictions" that might not be "legally permissible." He stated that the Court of Appeals has not directly ruled on the legality of such a plea bargain, and that in two cases the Appellate Division, Second and Third Departments, had "opined that…it probably was not legal." Mahoney testified that the dubious legality of the guilty plea would be an additional reason "to be reluctant to do it," but he declined to say that it "would have been a very significant factor." He testified that he recalled this procedure being used "fewer" than fifteen times in the past fifteen years.

The Post Hearing Arguments

In a post-hearing memorandum, the defendant argues that he has established a claim of ineffective assistance of counsel during plea bargaining. He contends that the evidence shows

 

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that defense counsel had failed to advise the defendant that he faced sentencing as a mandatory persistent violent felony offender. He argues also that there was a reasonable probability that the prosecution would have offered a guilty plea to the class C nonviolent felony offense, with a sentence as low as five to ten year. Relying on the defendant's hearing testimony, and the disparity in sentence between the defendant's true sentencing exposure and the guilty plea offer that he rejected, the defendant contends that he also established a reasonable probability that he would have pleaded guilty to a class C nonviolent felony offense. The defendant contends that his protestations of innocence before, during, and after his trial, do not preclude a finding that he would have accepted such a plea bargain, particularly where his protestations of innocence related to the gun possession charge rather than one of the class C nonviolent felony offenses that could have formed the basis of a plea bargain. Lastly, the defendant argues that the legal procedure for such a guilty plea, a post-indictment guilty plea to a superior court information, is "perfectly legal." In the alternative, the defendant argues that the parties could have resolved the case before indictment.

In arguing that the defendant's motion be denied, the prosecution concedes that defense counsel's performance during the period when plea bargaining would have been possible, was constitutionally deficient, but contends that the defendant has failed to demonstrate any prejudice. First, the defendant has failed to prove that Bureau Chief Mahoney would have approved a plea bargain to a nonviolent felony offense. Second, the defendant's repeated protestations of innocence and lack of interest in the guilty plea offer of seven years rendered incredible the defendant's postconviction claim that he would have pleaded guilty if he had been advised that he faced sentencing as a mandatory persistent violent felony offender. Lastly, the defendant failed to prove that any court would have accepted a post-indictment guilty plea to a nonviolent felony offense in a superior court information, because such a guilty plea would have been a circumvention of the statutory sentencing guidelines for a mandatory persistent violent felony offender.

The defendant's reply contains a response to the last argument made by the prosecution. Citing Mahoney's testimony that he was aware of instances in which an indictment had been resolved by a guilty plea to a superior court information, the defendant argued that the approval of such pleas in the past warranted the presumption that such a guilty plea had been accepted by a court, and that there is no reason to believe that the same would not be true in this case.

LAW

A defendant has a federal and state constitutional right to the effective assistance of counsel (US Const, 6th Amend; NY Const, art I, §6). To establish that counsel was ineffective under the Federal Constitution, the defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the defendant was prejudiced (Strickland v. Washington, 466 US 668, 687, 694 [1984]). Under the State Constitution, the defendant must show that counsel did not provide meaningful representation (see People v. Benevento, 91 NY2d 708, 712 [1998]; People v. Baldi, 54 NY2d 137, 146 [1981]). The slate standard contains a prejudice component more lenient than the federal standard because the state standard examines how counsel's performance affected the "fairness of the process as a whole rather than its

 

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particular impact on the outcome of the case" (People v. Caban, 5 NY3d 143, 156 [2005] [citations and internal quotation marks omitted]).

The right to the effective assistance of counsel extends to pretrial plea-bargaining (see Lafler v. Cooper, ___US___, 132 S Ct 1376, 1384 [2012]). As the Supreme Court recently acknowledged, "the negotiation of a plea bargain…is almost always the critical point for a defendant" (Missouri v. Frye,___US,___132 S Ct 1399, 1407 [2012]). Defense counsel must, therefore, effectively advise the defendant not only when the defendant pleads guilty but also when the defendant decides to reject a plea bargain and proceed to trial (see id. at 1407-1408; Lafler v. Cooper, 132 S Ct at 1386-1387). To demonstrate prejudice from inadequate advice during plea negotiations, the defendant must establish that the inadequate advice deprived him of a plea bargain more favorable than the result of the trial (see id. at 1382-1383, 1386-1387).

The more favorable plea bargain, however, must have been legal (see Aeid v. Bennett, 296 F3d 58, 63 [2d Cir 2002] [failure to obtain an illegal plea bargain does not constitute prejudice under Strickland]). If the plea bargain was not legal, the defendant cannot establish that the inadequate advice deprived him of a "substantive or procedural right to which the law entitles him" (Lockhart v. Fretwell, 506 US at 372 [internal citations omitted]). The prejudice required to support a claim of ineffective assistance of counsel cannot be attributable to "the luck of a lawless decisionmaker" (id. at 370 [citations and internal quotation marks omitted]). In such a case, the benefit that the defendant would have received is merely "a windfall to which the law does not entitle him" (id.; accord Williams v. Taylor, 529 US 362, 392 [2000] ["The likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential 'windfall' to the defendant rather than the legitimate 'prejudice' contemplated by our opinion in Strickland"]).

In this case, defense counsel's performance during plea bargaining was constitutionally deficient. Defense counsel failed to give the defendant accurate advice about the minimum and maximum sentence exposure that he faced under the indictment (see People v. Garcia, 19 AD3d 17, 20 [1st Dept 2005]; Cullen v. United States, 194 F3d 401, 404 [2d Cir 1999]). Defense counsel did not understand that the defendant faced sentencing as a mandatory persistent violent felony offender and failed to advise him that he faced a minimum sentence of from 16 years to life if convicted of the top charge after trial (see PL 70.08 [3] [b]). Defense counsel's mistake cannot be deemed reasonable because the District Attorney and the pretrial hearing court had made the same mistake. In such a circumstance, defense counsel's responsibility is "to detect and correct the court's and the prosecutor's mistaken impression of [the] defendant's sentencing status during plea discussions" (People v. Garcia, 19 AD3d at 20). Accordingly, the District Attorney correctly concedes that the defendant has satisfied the performance prong of Strickland.

This court also finds a reasonable probability that the prosecution and the defense would have agreed on a plea bargain to a class C nonviolent felony offense (see Strickland v. Washington, 466 US at 686; Williams v. Taylor, 529 at 406 [reasonable probability standard is lower than a preponderance of evidence]). This finding is supported by Mahoney's testimony that he "probably" would have approved of such a plea bargain with a prison term of from seven

 

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and one-half to fifteen years.2 Although the defendant was never asked at the hearing if he would have accepted a plea bargain with such a sentence, the evidence is sufficient to prove that he would have accepted it. The defendant stated that he would have changed his mind about pleading guilty if he had been informed of his true predicate felony sentencing status, and there is a reasonable probability that, upon the advice of competent counsel, the defendant would have accepted a guilty plea with a higher indeterminate sentence, such as seven and one-half to fifteen years, to avoid the more severe sentence that he faced as a mandatory persistent violent felony offender (see PL 70.08 [3] [b]). The defendant's protestations of innocence do not preclude such a finding (see People v. Garcia, 19 AD3d at 22; Cullen v. United States, 194 F3d at 407-408), particularly where his protestations related to possession of the gun rather than to a charge related to the theft of the money.

Nevertheless, the defendant cannot establish prejudice because the nonviolent felony plea bargain would have been illegal. Even if the defendant is correct that courts have accepted similar plea bargains in other cases, those guilty pleas were not authorized by the CPL (see People v. Thomasula, 78 NY2d 1051, 1052-1053 [1991] [similar kind of plea arrangement had been offered to cooperating prosecution witness but was not disputed to be "unauthorized under the Criminal Procedure Law"]). The legislatively imposed legal barriers to the nonviolent plea bargain are explained below.

The CPL limits the kind of guilty plea that a defendant may enter to an indictment. When an indictment charges more than one offense, the defendant cannot plead guilty to a lesser included offense without the consent of the district attorney and the approval of the court (CPL 220.10 [4] [b]). But even when the district attorney consents and the court approves, the class of the lesser included offense or offenses to which the defendant may plead guilty is restricted (see CPL 220.10 [5]). As relevant to this case, when charged with a class C violent felony offense, the defendant's guilty plea "must include at least a plea of guilty to a class D violent felony offense" (CPL 220.10 [5] [d] [ii]).

These limits will not apply if a defendant waives indictment by a grand jury and agrees to be prosecuted by a superior court information, but the waiver must occur before the indictment is filed (CPL 195.10 [2] [b]; see People v. Boston, 75 NY2d 585, 588 [1990] [the text of the statute "plainly and explicitly preclude[s] waiver by SCI after an indictment is filed"]). The right to waive indictment is for the benefit of defendants who wish to go directly to trial (though it is very difficult to imagine when, or to whom, this would apply) — or to plead guilty — without waiting for the grand jury to act (see id. at 588-589). The waiver provisions are, thus, "aimed at affording a defendant the opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings" (id. at 589 [internal citations omitted]).

The CPL has been interpreted to preclude a defendant from waiving indictment after the indictment has been filed and pleading guilty to a superior court information to circumvent the

 

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statutory plea bargaining restrictions. In People v. Mays (171 AD2d 762, 763 [2d Dept 1991]), the court found that this procedure not only violated the statutory requirement that a waiver of indictment occur before the indictment is filed but created an unauthorized reduction of the charges under CPL 220.10. In People v. Banville (134 AD2d 116, 124 [2d Dept 1988]), the court held that a guilty plea entered to a superior court information pursuant to such a procedure was invalid and "cannot be countenanced" because it would have the effect of authorizing a lesser plea than permitted by statute under the original indictment. Similarly, in People v. Cook (93 AD2d 942, 943 [3d Dept 1983]), the court invalidated a guilty plea entered under this procedure because "approval of the procedure…would allow the People to evade and subvert the mandatory sentencing provisions established by the Legislature by the improper use of a superior court information."

Under these precedents, a guilty plea in this case to class C nonviolent felony offense would be illegal. The defendant cannot dispose of the indictment by pleading guilty under a superior court information to a nonviolent felony offense because the CPL provides no legal method to achieve that result after the indictment has been filed. The purported "waiver" of the pending indictment would not be timely. Moreover, the indictment charges the defendant with a violent felony offense. The defendant can plead guilty to a lesser-included offense, but that lesser-included offense must be a violent felony offense (CPL 220.10 [5] [d] [ii]). The nonviolent felony plea bargain is a transparent effort to evade the plea bargaining restrictions in CPL 220.10. Defense counsel's failure to obtain this illegal plea bargain cannot support a claim of ineffective assistance of counsel.

The nonviolent felony plea bargain also fails as an improper circumvention of state sentencing statutes originally enacted to limit judicial discretion in sentencing. Some of those sentencing statutes permit a judge to impose a sentence outside the normal statutory range, but the authority to impose such a sentence is specifically enumerated by statute (see PL 70.71 [5] [c] [permitting alternative determinate sentence for operating as a major drug trafficker]; 70.00 [4] [permitting alternative definite sentence for defendant convicted of a class D or class E felony offense and not a second or persistent felony offender]; 65.00 [1] [b] [iii] [permitting sentence of probation for a conviction of certain class A-II and class B felony offenses if the defendant is providing material assistance to law enforcement as described in statute]). Often, in these statutory exceptions, the Legislature will specify the factors that a court must consider and state on the record as justification for invoking the more lenient sentence under an exception (see PL 70.71 [5] [c]; 70.00 [4]). The defendant's case does not fit into any such exception.

This court disagrees with the defendant's argument that the proposed plea bargain would be "perfectly legal" under People v. D'Amico (76 NY2d 877 [1990]). In that case, the defendant had been indicted for murder in the second degree and related offenses, including criminal possession of a weapon in the second and third degrees. To resolve the indictment, the defendant pleaded guilty to manslaughter in the first degree and to criminal use of a firearm in the first degree, a charge that was connected to the homicide but not contained in the indictment. The latter crime was charged in a superior court information filed after the defendant had waived indictment on that charge while being held for grand jury action on a felony complaint for that charge. In upholding the plea bargain, the Court of Appeals held that the waiver and the guilty plea were legal. The Court ruled that the waiver complied with all the pertinent requirements of

 

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CPL article 190 and that the guilty plea "was in no way improper," explaining that "the plea-bargaining restrictions of CPL 220.10 were not violated by the defendant's plea to first degree manslaughter in satisfaction of the indictment," and that the guilty plea to the superior court information "simply made possible a longer minimum sentence than that available for the manslaughter charge" (People v. D'Amico, 76 NY2d at 880).

The legal analysis upholding the indictment waiver and guilty plea in D'Amico provides no authority for the nonviolent felony guilty plea in this case. The nonviolent guilty plea proposed here resembles D'Amico only in that the defendant would waive indictment on a related charge contained in a new felony complaint and plead guilty to a superior court information. But unlike in D'Amico, the proposal here would not require the defendant to enter a guilty plea to the indictment that would comply with CPL 220.10; rather, the indictment would be dismissed in a transparent effort to evade the guilty-plea restrictions in that statute. In the absence of a guilty plea to the indictment that complies with that statute, the nonviolent felony plea bargain cannot be deemed legal under D'Amico.

This court reaches the same conclusion under the New York Constitution. Although the meaningful representation standard contains a more lenient prejudice standard than the federal standard, this court is unaware of any case in which the meaningful representation standard has been interpreted or applied to give a defendant "a windfall to which the law does not entitle him" (Lockhart v. Fretwell, 506 US at 370). Moreover, the meaningful representation standard focuses "on the fairness of the process as a whole" (People v. Feliciano, 17 NY3d 14, 20 [2011] [internal citations and quotation marks omitted]). The plea bargaining process cannot be characterized as unfair because the defendant did not receive a plea bargain unauthorized by law. Consequently, defense counsel's failure to obtain a nonviolent felony plea offer from the prosecutor did not deny the defendant meaningful representation.

The defendant has not established that defense counsel could have resolved this case with a nonviolent guilty plea before the indictment was filed. Although such a resolution is theoretically possible, few defendants, even when competently counseled, are ready to resolve a criminal case that early in the legal process. At that stage, defendants have little, if any, information about the nature of the evidence against them and many cling to the hope that judicial review of the indictment will lead to dismissal of the charges or that evidence seized by the police will be suppressed or that some other legal remedy can resolve the case without a conviction. In this court's experience, the majority of defendants do not mentally prepare themselves to plead guilty until one or more of those legal remedies prove to be ineffective. Here, the record contains no evidence, not even from the defendant himself, that he was willing to accept a nonviolent guilty plea at such an early stage in this case.

As demonstrated above, this court's resolution of the prejudice prong of the defendant's claim depends very little on the testimony given by Smith and the defendant at the CPL 440.10 hearing. Nevertheless, this opinion will make clear that this court found neither of them to be credible in their accounts of their conversations with defense counsel. Each of them had an overriding interest to secure a favorable result; but more importantly, their testimony defies logic and common sense. For instance, despite posting the defendant's bail and paying for his attorney, Smith claimed not to have discussed with counsel the facts underlying the charges, the

 

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defendant's sentence exposure, the possibility of obtaining a plea bargain with a sentence of less than seven years (but more than one year), or the possible sentence to be imposed after a trial. She even denied having a memory of the hearing court's having informed the defendant about the sentence that he faced if convicted after trial. She claimed to have had a level of disinterest and a lack of curiosity wholly inconsistent with her monetary investment in the case and her relationship with the defendant. The defendant fares little better in a credibility assessment, claiming as he did that he did not ask defense counsel what kind of plea bargain could result in a one year sentence or what sentence he faced if he proceeded to trial and lost. Their testimony seeks to communicate a wholesale trust in defense counsel's handling of the case that was designed to deceive this fact finder.

This court also denies the claims of ineffective assistance of counsel raised in the defendant's pro se motion. None of those claims rely on off-the-record information. All of them can be resolved on direct appeal based on the current record (CPL 440.10 [2] [b]). Nevertheless, this court will comment on some of them.

The defendant criticizes defense counsel at the pretrial hearing for not subpoenaing the off-duty police officer and for not effectively arguing that the fellow-officer rule did not apply to this case. However, the record shows that defense counsel did, in fact, argue that the fellow-officer rule did not apply to the facts of this case (see Hearing Transcript at 123 ["So, therefore, I would suggest to the Court very strenuously that the Fellow Officer Rule doesn't apply in this case"]). And defense counsel for co-defendant was granted an adjournment to subpoena the police officer, but could not locate her to call her as a witness. There is no reason to conclude that defense counsel would have been any more successful than counsel for co-defendant.

Defense counsel was not ineffective at trial for not presenting expert testimony to establish that the gun in the car did not contain the defendant's DNA or fingerprints. Such testimony would not have been exculpatory or increased the likelihood of an acquittal in this case because the prosecution's theory of possession was not based on the defendant's actual physical possession of the gun. The prosecution contended that the defendant possessed the gun jointly and constructively. The defendant could be guilty under either theory even if he never actually possessed or touched the gun. In fact, the defendant could be found guilty under either theory even if the gun contained only the DNA or the fingerprints of co-defendant Griffith. The theory of guilt in this case also did not require that the defendant "own" the gun (see People v. Myers, 265 AD2d 598, 600 [3d Dept 1999] ["Notably, possession does not require actual ownership of the gun"]). In fact, under the law, a person cannot "own" an unlicensed handgun. Based on the facts of this case, the defendant was not prejudiced because defense counsel did not retain a DNA or fingerprint expert.

The defendant's motion is denied.

This is the decision and order of this court.

Dated: February 18, 2014

1. Although the police had arrested the defendant for robbery and possession of the firearm, the grand jury heard testimony from only one or more of the police officers who stopped the vehicle and seized its contents. The robbery victim never was identified, and the police officer who had witnessed the robbery was unavailable to testify due to a personal or family medical situation.

2. This court does not interpret Mahoney's testimony to mean that he needed approval from a superior to approve such a plea bargain. He stated that he would have consulted his superior to obtain that person's opinion, but Mahoney did not testify that he was bound to accept that person's view of whether or not to approve such a plea bargain.