Opinion
2018–01439, 2020–08832 Ind. No. 2105/16
02-09-2022
The PEOPLE, etc., respondent, v. Brian TINDLEY, appellant.
Patricia Pazner, New York, NY (Ava C. Page of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Emily Aguggia of counsel), for respondent.
Patricia Pazner, New York, NY (Ava C. Page of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Emily Aguggia of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered October 5, 2017, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence, and (2), by permission, from an order of the same court (Ushir Pandit–Durant, J.) dated October 2020, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment.
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
The defendant pleaded guilty to criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree, predicated upon the recovery of cocaine and a gun from his property pursuant to search warrants. He thereafter moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction, asserting that he was denied the effective assistance of counsel because, inter alia, his former counsel did not request and review the search warrant affidavits, move to controvert the search warrants, or advise him before he pleaded guilty that challenging the legality of the search warrants was an option. In an order dated October 2020, the Supreme Court denied the defendant's motion without a hearing. A Justice of this Court granted the defendant leave to appeal from the order.
A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty (see People v. Flinn , 188 A.D.3d 1093, 1094, 132 N.Y.S.3d 657 ; People v. Hungria, 161 A.D.3d 1007, 1008, 77 N.Y.S.3d 107 ). "Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness, and that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ " ( People v. Bodden, 82 A.D.3d 781, 783, 918 N.Y.S.2d 141, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; see People v. Robinson, 163 A.D.3d 1002, 1002, 81 N.Y.S.3d 512 ). Under the New York standard, a court must examine whether " ‘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’ " ( People v. Oliveras, 21 N.Y.3d 339, 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241, quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). "In cases asserting ineffective assistance of counsel in the context of a guilty plea, ‘the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different’ " ( People v. Flinn, 188 A.D.3d at 1094, 132 N.Y.S.3d 657, quoting People v. Parson, 27 N.Y.3d 1107, 1108, 36 N.Y.S.3d 85, 55 N.E.3d 1058 ; see People v. Saunders, 193 A.D.3d 766, 768, 145 N.Y.S.3d 121 ).
Defense counsel's "investigation of the law, the facts, and the issues that are relevant to the case" is "[e]ssential to any representation, and to the attorney's consideration of the best course of action on behalf of the client" ( People v. Oliveras, 21 N.Y.3d at 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ). Accordingly, a defendant's right to representation entitles him or her " ‘to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself [or herself] time for reflection and preparation for trial’ " ( id., quoting People v. Bennett, 29 N.Y.2d 462, 466, 329 N.Y.S.2d 801, 280 N.E.2d 637 ; see People v. Davis, 193 A.D.3d 967, 970, 145 N.Y.S.3d 591 ). Here, the defendant's averments in his affidavit, along with other evidence submitted in support of his motion, were sufficient to warrant a hearing on the issue of whether his former counsel was ineffective for failing to conduct an appropriate investigation to determine whether pretrial motions concerning the search warrants should be made, and failing to advise him of potential challenges to the legality of the search warrants before he pleaded guilty to possession counts predicated on physical evidence recovered pursuant to the warrants (see People v. Flinn, 188 A.D.3d at 1094–1095, 132 N.Y.S.3d 657 ; People v. Balcerak, 144 A.D.3d 833, 834, 40 N.Y.S.3d 554 ; see also People v. Caldavado, 26 N.Y.3d 1034, 1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 ; cf. People v. Wright, 27 N.Y.3d 516, 522, 35 N.Y.S.3d 286, 54 N.E.3d 1157 ).
Accordingly, we reverse the order and remit the matter to the Supreme Court, Queens County, for a hearing and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction (see People v. Bernard, 195 A.D.3d 740, 145 N.Y.S.3d 402 ; People v. Picca, 97 A.D.3d 170, 188, 947 N.Y.S.2d 120 ). Under the particular circumstances of this case, we direct the Supreme Court to issue an order directing the People to provide defense counsel, prior to such hearing, with copies of the search warrant materials at issue, with redactions that protect the identity of the confidential informant (see People v. Lambey, 176 A.D.3d 1232, 1234, 111 N.Y.S.3d 388 ; see also CPL 245.20[1][c], [n] ).
The defendant's challenge on direct appeal from the judgment of conviction to the imposition of a civil forfeiture of currency is unpreserved for appellate review (see People v. McKeithan, 137 A.D.3d 943, 944, 26 N.Y.S.3d 478 ; People v. Burgos, 129 A.D.3d 627, 628, 13 N.Y.S.3d 350 ), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. McKeithan, 137 A.D.3d at 944, 26 N.Y.S.3d 478 ).
The remaining contention raised by the defendant on direct appeal does not require reversal.
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.