Opinion
IND. NO. 10116/97
03-28-2014
THE PEOPLE OF THE STATE OF NEW YORK v. JASON BENTLEY, DEFENDANT.
DECISION AND ORDER
HON. JOEL M. GOLDBERG
The defendant's motion, pursuant to CPL 440.10 (1) (h), dated May 21, 2013, to vacate the judgment of April 22, 1999 convicting the defendant after a jury trial of Murder in the Second Degree and Assault in the First Degree, upon consideration of the People's Answer, dated August 9, 2013, this Court's Order, dated October 19, 2013, granting a hearing on the motion, the hearing held on this motion on December 16, 2013, the defendant's post-hearing papers, dated January 27, 2014, the People's post-hearing papers, dated February 14, 2014, and oral arguments held on March 20, 2014, is denied.
The defendant's motion claimed the defendant was denied his constitutional right to the effective assistance of counsel when his assigned attorney, George Sheinberg, Esq., failed to convey to him the prosecution's plea offer, and instead, summarily rejected it. The motion also claimed that based on the apparent strength of the People's case against the defendant, trial counsel was ineffective for failing to advise the defendant to accept the plea offer if not actually convince him to accept it. Procedural History
The defendant and David Ortega were separately indicted for the June 22, 1997 felony murder of Luis Cabral Corcino in his Brooklyn apartment during an attempted robbery wherein Corcino was fatally shot and his wife, Lecrecia Delia Cruz, was shot several times but survived although with injuries requiring her to use a leg brace to walk.
On July 9, 1997 Ortega was arrested. The defendant was arrested later that same day. The defendant gave a statement to the police and subsequently to an Assistant District Attorney on videotape stating that on the night of the murder he had been in a car -with two other people following a party where he had been drinking. The defendant said he had fallen asleep in the car and was unaware of what may have taken place outside of the car while he was asleep. After giving this statement, the defendant was released. (This exculpatory videotape was introduced into evidence at the trial.)
About two months later, on September 18, 1997, the defendant was arrested for another homicide (the trial jury was told only that it was "an unrelated incident"). During police questioning about this "unrelated incident," the subject of the Corcino homicide came up, and the defendant ultimately admitted that David Ortega had asked him to be a lookout during that robbery. The defendant admitted to being a lookout, and according to the defendant's statement, Ortega had fired about five shots into the apartment. The defendant signed a statement to that effect but declined to give a videotaped statement.
The defendant, as noted, was separately indicted from Ortega. After a jury trial before this Court, the defendant was sentenced to an aggregate term of 35 years to life, 25 years to life on the felony murder (P.L. 125.25 [3]) and ten years for the Assault in the First Degree conviction (P.L. 120.10 [4]).
The defendant was not prosecuted for the unrelated homicide about which he was questioned on September 18, 1997. However, the defendant did have a prior conviction for Manslaughter in the First Degree wherein following a guilty plea on August 3, 1992, he received a three to nine year sentence as a juvenile offender based on a shooting that took place in a high school where he shot a teacher and killed another student. He was on parole for that homicide at the time of this homicide.
The defendant's conviction was affirmed on direct appeal. People v. Bentley, 284 AD2d 546 (2 Dept. 2001). Leave to appeal to the Court of Appeals was denied at 96 NY2d 916 (2001).
The defendant, on October 28, 2002, filed a pro se coram nobis petition claiming ineffective assistance of appellate counsel. That petition was denied. People v. Bentley, 302 AD2d 470 (2 Dept. 2003). Leave to appeal to the Court of Appeals was denied at 99 NY2d 652 (2003).
The defendant subsequently petitioned the United States District Court for the Eastern District of New York pro se for a writ of habeas corpus. In December of 2004, the petition was denied and, in August of 2005, the Second Circuit Court of Appeals denied a certificate of appealability.
Prior to this case being assigned to this Court for hearing and trial purposes in March of 1999, the case was pending in Part 10 before the Hon. Justice Neil Jon Firetog from arraignment on the indictment on October 15, 1997 to March 15, 1999.
On July 2, 1998, about nine months into the 18 months that this case was pending before Justice Firetog, the minutes of July 2, 1998, at 2, reflect the following:
THE CLERK: Added to the Part 10 calendar, Number 22, Indictment 10116/97, Jason Bentley.
Defendant is present, [parties note their appearances for the record]
MR. SHEINBERG: Your honor, this matter was placed on today's calendar for the purpose of my discussing a disposition with the defendant, a disposition which had been offered of ten years flat sentence or possibly nine years and dismissal of the homicide charges (emphasis supplied). I discussed this with Mr. Bentley at length, and he wishes to go to trial
(emphasis supplied). He does not wish to accept any disposition in this case. We are ready when the Court sets it down for trial.
As noted, the minutes reflect that on July 2, 1998 the case was "Added to the Part 10 calendar." The Court file, as per notations by the Court Clerk in Part 10, reflects that on June 30, 1998, the preceding court date, the case was on the "Video Conference" (VC) calendar and adjourned to July 2, 1998 with the notation "[defendant] to be produced." These notations are consistent with Mr. Sheinberg's statement on July 2, 1998 that "the matter was placed on today's calendar for purposes of my discussing a disposition with the defendant."
On March 15, 1999, after pending in Part 10, the case appeared before this Court for the first time and suppression hearings were scheduled for the next day. The hearings commenced on March 16, 1999 followed immediately by the trial. According to the court file, there were no plea discussions before this Court.
David Ortega's case had gone to trial first and resulted in a hung jury on June 18, 1998, about two weeks before the plea offer to the defendant on July 2, 1998. Ortega was acquitted at a second trial on October 15, 1998, about five months before the commencement of the defendant's trial. The Hearing on the Motion
There were two witnesses at the hearing: Jason Bentley and George Sheinberg.
Jason Bentley testified he was 36 years-old with an eighth-grade education, making him about 20 years old when he was arrested in this case. His assigned attorney, George Sheinberg, usually met with him to discuss the case in the courthouse holding pens before the case was called. These meetings were private. Mr. Sheinberg did not have any meetings with the defendant at Riker's Island or private video conferences with the defendant.
The defendant recalled speaking with Mr. Sheinberg prior to his arraignment on the indictment for not more than ten minutes and then not again for about six months (until about March of 1998). Although the defendant testified he never met Mr. Sheinberg before court (Hearing, "H." at 23), the defendant previously testified (H. at 19) that he would meet privately with Mr. Sheinberg before being brought up in the elevator to the courtroom. (Perhaps the defendant meant he never met with Mr. Sheinberg in between court dates.)
In March of 1998, the defendant met with Mr. Sheinberg in the courthouse for about 30 to 45 minutes discussing "the theory of the case." The defendant testified Mr. Sheinberg conveyed "an optimistic attitude as far as he felt the case was winnable because he said the only thing connecting me to the crime was the confession" (H. at 24). (The defendant did not make a videotape of his second statement as he did of his first exculpatory statement which was the basis at trial for the defense challenge to the voluntariness and veracity of the second statement.) There was no discussion about any plea offer by the prosecution. The defense plan was to go to trial.
After an April 1998 court appearance, there was another private meeting for about 15 minutes in the pens. There was no discussion about a plea. There was also a second meeting after a court appearance in April. (The clerk's notes in the court file reflect there were two court appearances by the defendant in April, and that at the second April appearance, on April 28, 1998, the case was placed on the "video conference" calendar for every subsequent appearance in Part 10 with the exception of July 2, 1998 when the defendant was produced in Part 10 pursuant to a notation made on June 30, 1998).
On the June 30 video conference date (which followed the June 18, 1998 hung jury in Ortega's trial), the defendant testified that he observed on his video screen a bench conference between counsel and the Court. The minutes of these proceedings, at 2, reflect that after the bench conference, both the prosecutor and Mr. Sheinberg stated the case was being adjourned "for possible disposition."
The defendant testified that on July 2, 1998 Mr. Sheinberg never discussed with him the plea offer that had been made by the prosecution before rejecting it on the record.
The defendant testified that while still in the courtroom after Mr. Sheinberg rejected the offer, he asked Mr. Sheinberg in a whisper what was going on, and Mr. Sheinberg said he would talk to the defendant later, which he did in the pens. In that conversation, Mr. Sheinberg said the offer meant the defendant would have to serve about eight years. The defendant testified he was upset during this conversation, because Mr. Sheinberg rejected the plea offer without speaking with him. The defendant testified Mr. Sheinberg in this conversation said that because the defendant never had indicated a willingness or an interest in taking any pleas, he did not believe the defendant would be interested. Mr. Sheinberg told the defendant not to worry, because the low plea offer showed the prosecution was not confident in its case.
The defendant testified that based on the life sentence he was facing, he would have taken the offer of ten years, but he believed that once Mr. Sheinberg rejected it, the offer was no longer available - "I felt it was a dead issue" (H. at 39). The defendant believed it was Mr. Sheinberg's decision whether to accept the plea offer.
The defendant recalled being angry that Mr. Sheinberg had rejected the plea offer before speaking about it with the defendant and also recalled expressing his anger to Mr. Sheinberg, but he did not recall ever telling Mr. Sheinberg that he wanted to accept the offer (H. at 62-63). The subject of taking a plea offer was never discussed again. (There were approximately eight subsequent video conferences in Part 10 from September 14, 1998 to March 1, 1999 before the case was sent to Part 22 on March 15, 1999).
While doing legal research on his case with regard to his pro se claim of ineffective assistance of appellate counsel, which was filed in 2002, the defendant learned he had a legal right to be informed of and make the final decision on all plea offers. The defendant attempted to gather documentation to support his claim that Mr. Sheinberg rejected the plea offer without his consent, including court transcripts and Mr. Sheinberg's 18B voucher.
Mr. Sheinberg's 18B "activity log" form for July 2, 1998, the day of the plea offer, shows: 3 hours spent "In Court" in the morning with the notation: "Conference with the Court and the District Attorney offer made of 8 years [sic]. Record made of offer and the defendant's refusal;" 1 hour "Out of Court" in the afternoon in the pens with the notation: "Conveyed offer to defendant."
After the plea offer was rejected and the defendant allegedly was upset that Mr. Sheinberg had rejected it, the defendant did not express his dissatisfaction to the Court, his family, or anyone else, because he believed it was Mr. Sheinberg's purported decision to reject the offer that controlled.
George Sheinberg testified he has been an attorney for over 50 years and has been specializing in criminal cases since 1975. He was assigned to represent the defendant in September of 1997.
Mr. Sheinberg testified he had virtually no recollection of this case (H. at 69). From Mr. Sheinberg's recollection of the proceedings, which he testified was refreshed by his looking at Court minutes, the case was heard by video conference on June 30, 1998. At that time an off-the-record plea offer was made, and Mr. Sheinberg asked that the defendant be produced on July 2, 1998 so that he could discuss the plea offer with the defendant (H. at 96-98).
Mr. Sheinberg testified that on July 2, 1998 based on his practice of not unilaterally rejecting plea offers, the plea offer was rejected by him on the record after he spoke about it with the defendant, and the defendant told him to reject it (H. at 100). Mr. Sheinberg had further discussions about the plea offer in the afternoon, and the defendant said he wanted to go to trial (H. at 100). (This testimony appears to have been an inference drawn by Mr. Sheinberg from the notation in his activity log, rather than an actual recollection of the conversation.)
Based on his unvarying practice, if the defendant had said he wanted the plea offer in the morning, Mr. Sheinberg would have accepted it in the courtroom, and if the defendant later said he wanted the plea offer, Mr. Sheinberg would have called the District Attorney's Office and asked that the case be calendered for a plea (H. at 101).
Mr. Sheinberg testified that based on the facts of this case, and even though his activity log states that the plea offer was "conveyed" in the afternoon of July 2, 1998 with no mention of a morning plea discussion with the defendant, he would have repeatedly encouraged the defendant to accept the plea offer that was rejected in the morning of July 2, 1998 (H. at 102). His activity log is kept solely to keep track of time spent on the case for billing purposes and does not include summaries of all conversations with defendants (H. at 116).
Mr. Sheinberg assumed, but had no specific recollection, that the defendant was "adamant" about rejecting the offer and going to trial, because "it was a really good offer" and he would have repeatedly encouraged the defendant to accept it (H. at 110-111). Mr. Sheinberg did not put on the record that the plea offer was being rejected by the defendant against his professional advice (H. at 112).
Mr. Sheinberg in his 50 years of practice never rejected a plea offer on the record without first speaking to the client (H. at 120). Discussion
The defendant testified he did not know about the July 2, 1998 plea offer until he heard Mr. Sheinberg reject it on the record. The defendant also testified he had a conversation with Mr. Sheinberg that afternoon wherein he expressed his displeasure at Mr. Sheinberg for not previously discussing that offer with him before rejecting it. Nevertheless, the defendant did not recall ever telling Mr. Sheinberg, his own family, or anyone else that he actually wanted to accept that plea offer.
Although the defendant was 20 years-old at the time, he already had previous experience in the plea bargaining process. He had been charged with murder as a 15 year-old and accepted a guilty plea to Manslaughter in the Second Degree with a prison sentence of three to nine years. Thus, the defendant's explanation for not taking the plea offer he purportedly wanted to take, i.e. he believed the decision whether to plead guilty was up to Mr. Sheinberg, simply, does not have the ring of truth, particularly when the defendant made no complaints to anyone, including Mr. Sheinberg.
On the other hand, Mr. Sheinberg testified that in his 50 years as an attorney, he never rejected a plea offer on the record without first speaking with the client.
Further, the record in this case shows that following a series of defendant court appearances by video conference, the case was, on June 20, 1998, specifically put on the calendar for July 2, 1998 following a hung jury in the trial of the co-defendant, for an in-court appearance by the defendant and "possible disposition." The minutes of June 20, 1998 show Mr. Sheinberg specifically concurred with this proposal. As reflected in the testimony at the hearing, up to that point, Mr. Sheinberg had not spent an extensive amount of time discussing the case with the defendant and had not discussed the new plea offer at all with the defendant prior to July 2, 1998.
Therefore, it defies credulity to believe that Mr. Sheinberg, contrary to what he testified was his invariable practice not to unilaterally reject plea offers, would make an exception in this particular case and reject the plea offer on July 2, 1998 without first discussing it with the defendant, particularly where the defendant was produced in court for possible disposition and the plea offer was extremely favorable.
Further, the minutes of July 2, 1998 reveal, at 2, that Mr. Sheinberg stated, "I discussed this [plea] with Mr. Bentley at length and he wishes to go to trial. He does not wish to accept any disposition in this case " (emphasis supplied).
If Mr. Sheinberg had not previously discussed this plea offer with the defendant prior to rejecting it, Mr. Sheinberg would have had no way of knowing the defendant would remain silent and not refute this statement - either immediately or at least prior to trial - which would have called down on Mr. Sheinberg the wrath of the Court for rejecting the plea offer without discussing it with the defendant, particularly when the case had been put on the calendar for that very purpose, and subject Mr. Sheinberg to potential professional discipline.
Mr. Sheinberg could not recall any details about this case at the hearing held 15 years after the events in question, but there is no doubt as to his ability on July 2, 1998 to recall the events of that same morning when he stated, "I discussed this with Mr. Bentley at length, and he wishes to go to trial. He does not wish to accept any disposition in this case."
Although the defendant has crafted an argument based on Mr. Sheinberg's activity log, noting that the plea offered was "conveyed" in the afternoon, this log was kept for 18B billing purposes to record time spent on the case and was not intended to be a detailed account of what was done. The more likely interpretation is that in the afternoon, Mr. Sheinberg continued the morning's discussion of the plea offer with the defendant in view of its favorable nature given the evidence in the case. That same activity log also reflects that three hours were spent on the case in the morning which would account for time spent discussing the plea offer with the defendant in the morning even though the activity log does not state that any time was spent doing this. Certainly, the time spent on the record did not take three hours.
Further, contrary to the defendant's testimony that Mr. Sheinberg did not discuss the "strengths and weaknesses" of the case with him, Mr. Sheinberg testified that although he did not recall any specific conversation with the defendant, he would have strongly and repeatedly urged the defendant to consider the plea offer given the circumstances of this case and the favorable sentence that was being offered.
No reason was revealed at the hearing as to why the defendant did not accept Mr. Sheinberg's advice to consider the plea offer, other than the defendant's testimony that no such advice was given.
However, as the People posit in their post-hearing papers, the co-defendant's trial resulted in a hung jury shortly before the July 2, 1998 plea offer and, following the retrial, an outright acquittal resulted on October 15, 1998, five months before the defendant's trial. This may very well have influenced the defendant's decision not to accept Mr. Sheinberg's advice and consider the plea offer.
At the oral argument on this motion, the defendant asserted through counsel that he was unaware of the status of Ortega's case and that there was a court order separating them while they were incarcerated. Defense counsel also argued that the People had an opportunity at the hearing on this motion to question the defendant as to his knowledge of the status of Ortega's case but did not do so. Nevertheless, although Mr. Sheinberg had virtually no recollection of this case, he would most certainly have had knowledge of the status of Ortega's case while representing the defendant and been in a position to update the defendant on it.
To this Court such a scenario is more plausible than Mr. Sheinberg telling the Court on the record and in the presence of the defendant on July 2, 1998 that he had "discussed [the plea offer] with Mr. Bentley at length," when, in fact, Mr. Sheinberg had not done so.
It is the defendant's burden to prove on this motion every essential fact. CPL 440.30 (6). If the defendant had expressed to Mr. Sheinberg at any time - not only in the afternoon following the July 2, 1998 court proceedings - that he was upset with Mr. Sheinberg's purported unilateral rejection of the plea offer, Mr. Sheinberg would have, as he testified, sought to have the case advanced so the defendant could accept it.
Mr. Sheinberg's credibility is not diminished by his understandable lack of memory recalling the particular details of this case and conversations he had with the defendant before the trial. (This Court presided at the trial of this case 15 years ago and can appreciate first-hand the effects the passage these many years would have on an attorney's memory of these events.)
Further, this Court has reviewed the sentencing minutes of April 22, 1999. The defendant, at 9, was given an opportunity to make a statement. He denied his guilt and asked for leniency. The prosecutor, at 8, requested the defendant be given "the maximum time allowed by law" on both the assault and murder convictions and that the sentences iun consecutively. This was certainly an incentive for the defendant to inform the Court that he had wanted to take the ten-year plea offer. However, the defendant made no mention of his desire to take the plea offer nor did he criticize Mr. Sheinberg for what he now says was Mr. Sheinberg's over-confidence in his chances for success at trial. The defendant's silence at sentencing about these supposed grievances is more consistent with the fact that they did not exist, because they had no underlying factual basis, than it is with his present claim that he did not know that it was his choice and not Mr. Sheinberg's whether to accept the plea offer.
The defendant has not established that he was denied his constitutional right to effective assistance of counsel pursuant to the holding of Missouri v. Frye, 132 S. Ct. 1399 (2012), based on his assertion that the plea offer was not conveyed to him. The record of the proceedings on July 2, 1998 shows it was discussed with him prior to Mr. Sheinberg rejecting it. The defendant's own testimony concedes he was aware of it and did not tell anyone he wanted to accept it.
The doctrine of Missouri v. Frye, (at 1409), requires not only a finding of counsel's failure to timely convey a formal plea offer, but also a finding that had it been conveyed, there is a reasonable probability the defendant would have accepted it. In this case where it is undisputed that the offer was actually conveyed to the defendant and not accepted, the defendant has not met the second prong of Missouri v. Frye.
The defendant's claim that he did not know he could, nevertheless, accept it following what he asserts was Mr. Sheinberg's unilateral rejection of the plea offer, as noted, is not sufficiently credible for the defendant to carry his burden of proof on this point.
In fact, at the hearing, the defendant, in response to the Court's questions, testified he never actually told Mr. Sheinberg he wanted to take the plea (H. at 63). See People v. Brunson, 68 AD3d 1551, 1555(3rd Dept. 2009) (despite self-serving statements to the contrary, the defendant never demonstrated any willingness or inclination to give up his right to trial or to accept any plea offer); People v. Rogers, 8 AD3d 888, 890-91 (3 Dept. 2004) (the defendant did not meet his burden to show, as he subsequently claimed, that he told his attorney he would have been willing to accept any plea offer involving "a short sentence").
Insofar as weighing Mr. Sheinberg's credibility against the defendant's, this Court finds that Mr. Sheinberg, as he testified, had no actual recollection of his conversations with the defendant, and any testimony of his that indicated otherwise were mis-statements based on what he honestly believed he would have done based on his custom and practice. On the other hand, the defendant's contention that he believed he never had a chance to accept the plea offer is inherently incredible for the reasons noted above. The arrow on the credibility scale is pushed even further against the defendant when consideration is given to the defendant's self-interest in this case, his criminal record as it bears upon his credibility, and the fact that he admitted lying to the police in his first statement about being asleep in a car, because he believed that when making that statement it was in his interest to lie.
Finally the defendant's reliance on Laffer v. Cooper, 132 S. Ct. 1376 (2012), for the assertion that Mr. Sheinberg provided ineffective assistance of counsel by being overly optimistic about the defendant's chances at trial and, therefore, discouraging him from accepting the plea offer is misplaced, because the defendant has denied ever having a discussion with Mr. Sheinberg about whether to accept the plea offer. It is the defendant's position that he never told Mr. Sheinberg he wanted to accept the plea and that Mr. Sheinberg never made it clear to the defendant that he, in fact, did have an opportunity to consider and accept the plea offer.
Although Mr. Sheinberg had no specific recollection that he actually advised the defendant to take the plea offer, he testified that based on all the circumstances of the case, and his custom and practice, he would have counseled the defendant to accept the plea offer. No doubt Mr. Sheinberg's and the defendant's spirits may have been lifted following the hung jury in Ortega's first trial, and even further elevated following Ortega's acquittal, but these events would not have caused Mr. Sheinberg not to discuss the plea offer with the defendant, although they may have affected the defendant's "willingness to listen.
If the defendant did not tell Mr. Sheinberg he was interested in the plea offer after hearing it in Court, which is what the defendant testified was the situation, there would come a point when repeated efforts by Mr. Sheinberg to persuade the defendant to accept the offer, particularly in the five-month period before the trial following the co-defendant's acquittal, would have likely have been unsuccessful if not also counterproductive to their attorney-client relationship. This Court not infrequently confronts situations where defendants who do not want to accept plea offers demand that their assigned counsel be relieved, "because all my attorney wants me to do is plead guilty."
The defendant's self-serving claim that Mr. Sheinberg provided an overly optimistic assessment of the case as the reason why the defendant did not accept the plea offer is as equally lacking in credibility as his assertion that Mr. Sheinberg unilaterally rejected the plea offer and that, thereafter, the defendant believed the plea offer was off the table - "a dead issue" according to his testimony.
Accordingly, the defendant's motion is denied.
SO ORDERED
__________
JOEL M. GOLDBERG
JUDGE