Opinion
1649/06.
January 16, 2009.
HON. ROBERT T. JOHNSON District Attorney Bronx County, Bronx, NY, Dana Levin, Esq. Of Counsel, for the People.
SHERMAN STERLING LLP NY, Brian H. Polovoy, Esq. Christopher C. Dana, Esq. Curtis D. Scribner, Esq. Of Counsel and STEVEN BANKS, ESQ. The Legal Aid Society Criminal Appeals Bureau NY John Schoeffel, Esq. Of Counsel, for the Defendant.
DECISION
Defendant moves pursuant to CPL §§ 440.10 (1) (h) and (f) to vacate his conviction for burglary in the second degree (PL § 140.25) and criminal possession of stolen property in the fourth degree [PL § 165.45(1)], and sentences of concurrent terms of imprisonment of 17 1/2 years to life on the burglary charge and two to four years on the stolen property charge, entered on May 3, 2007(Massaro, J.).
Justice Massaro is now sitting in Supreme Court, Civil Division, Bronx County.
Defendant alleges that his Sixth Amendment right to effective assistance of counsel was violated because of his trial counsel's deficient performance. Specifically, defendant alleges that the actions of his trial counsel, Peter Cervini, Esq. ("Cervini"), were based on a misunderstanding of settled New York law that a defendant can be convicted of an offense under an acting in concert theory even if the theory is not charged in the indictment. Defendant asserts that, based upon his counsel's ignorance of this legal principle, incorrectly conveyed to defendant, he declined an advantageous plea offer of 5 1/2 to 11 years, based on inaccurate information regarding the viability and availability of his possible trial defenses.
Defendant further argues that Cervini was ineffective in that he failed to seek suppression of defendant's statements, object to the sufficiency of the People's value evidence regarding the criminal possession of stolen property charge, and request a mistrial once the Court decided to charge acting in concert. He seeks vacatur of the judgment of conviction and a re-tender by the prosecution of the previously rejected plea offer.
In the event defendant prevails at the hearing, the sole remedy available will be an order granting a new trial. Although defendant suggests that the People can be required to re-offer the plea which defendant rejected, he cites no New York State authority in support of that position. While federal law and the law in other states may be to the contrary [ see United States v Day, 969 F.2d 39, 47 (3d Cir. 1992)], there is no suggestion that Article 440 would permit that result. The Court also notes that the decision in Carrion v Smith, 537 F. Supp. 518 (S.D.N.Y. 2008), relied on by defendant, has been vacated by the Second Circuit. Carrion v Smith, 549 F.3d 583 (2d Cir. 2008).
The People have filed an affirmation in opposition to defendant's motion, together with an affidavit from Cervini, contending that defendant's claims are without merit.
Background
The prosecution arose out of the burglary of an apartment in Bronx County. On March 19, 2006, Clyde Noel's apartment, located at 1580 Theriot Avenue, Bronx County, was burglarized and jewelry and other property, including clothing and a safe containing documents, such as passports, visas and a social security card, were stolen. Pursuant to his investigation, Police Officer Brain McMahon examined records maintained by a local pawn shop and found that defendant had pawned a crucifix which resembled the one stolen from Noel's apartment. Officer McMahon contacted defendant's parole officer, accompanied her to defendant's apartment, conducted a search of defendant's apartment and discovered Noel's safe and its contents. Defendant was then arrested.
Subsequent to his arrest, defendant provided the police with the following written statement: "I, George Martinez, supported Martin by carrying stolen merchandise from Theriot. I was outside the building and carried the luggage home to 1057 White Plains Road, Apt 2-A." In a videotaped statement, defendant made a substantially similar statement and added that he helped carry the merchandise stolen from the victim's apartment and that, as he was initially walking to the victim's apartment with an acquaintance named "Martin", he "thought [he] might get a few bucks out of it."
Defendant testified before the Grand Jury that he accompanied "Martin" to the apartment on 1580 Theriot Avenue in the hopes "to get paid" through a "little job." Defendant stated that Martin entered the apartment and then came out "with a suitcase." Martin carried the suitcase back to defendant's apartment, where they both opened it and found that it contained some clothes and a safe. Upon seeing the unopened safe, Martin told defendant that he thought there would be some money and jewelry inside the safe. Defendant opened the safe with a screwdriver and found various documents. Disappointed about the contents of the safe, Martin left defendant's apartment and left the safe with defendant. Defendant claimed that he kept the safe and its contents in order to eventually give them back to the victim. Defendant stated that he initially told Officer McMahon, when the stolen property was found in his apartment, that Noel's identification papers belonged to his wife. Defendant admitted that he did sell the stolen crucifix to the pawn shop.
Defendant was indicted and charged with burglary in the second and third degrees, criminal possession of stolen property in the fourth and fifth degrees, grand larceny in the fourth degree, criminal mischief in the fourth degree, petit larceny and criminal trespass in the second degree. None of the counts charged that the defendant acted in concert with another.
On August 10, 2006, the Court set a motion schedule and the case was adjourned to October 12, 2006. On that day, Cervini requested a further adjournment to file motions, and the case was adjourned to December 5, 2006. On that day, Cervini informed the Court that he was going to waive motions. On a subsequent date, the People informed the Court that although motions had been waived, they would consent to a Mapp and Huntley hearings. Cervini indicated that he was certain that he did not want hearings and was ready for trial.
On February 7, 2007, Cervini informed the Court that the People had made a plea offer to defendant. Pursuant to the offer, defendant would plead guilty to burglary in the third degree, a class "D" non-violent felony, and be sentenced to a term of imprisonment of 3 1/2 to 7 years, and to criminal possession of stolen property in the fourth degree, a class "E" non-violent felony, and be sentenced to a consecutive term of imprisonment of two to four years, resulting in a total term of imprisonment of 5 1/2 to 11 years. Cervini indicated to the Court that he had conveyed the offer to his client, but that defendant wanted to discuss it further and the case was adjourned for trial.
Defendant subsequently declined the offer and proceeded to trial before Hon. Dominic Massaro, J.S.C. On April 9, 2007, at the Sandoval hearing, just prior to jury selection, Cervini informed the Court that the "proper defense" was not suppression, but was to convince the jury that defendant was not guilty of burglary, but only of possession of stolen property. Cervini said that defendant was never in the premises, and that he only possessed things that he learned came from the burglarized apartment, and that he was not charged with acting in concert.
In his opening statement, Cervini told the jury that there was no direct evidence that defendant was ever inside Noel's apartment; Cervini went on to emphasize that no one ever saw defendant in Noel's apartment and that his DNA sample did not match anything in the apartment. Cervini told the jury that the evidence would show that defendant possessed items that were in the apartment and therefore he was only guilty of the possession charges. Cervini asked the jury to convict defendant of criminal possession of stolen property in the fifth degree.
During the trial defendant's Grand Jury testimony was read to the jury and both defendant's written and videotaped statements, in which he admitted that along with Martin, he carried stolen merchandise to his apartment, were admitted in evidence. At the preliminary charge conference, the People requested an acting in concert charge under Penal Law § 20.00. Cervini opposed the request, arguing that defendant would be prejudiced because the prosecution did not charge acting in concert in the indictment. After reviewing the case law submitted by the prosecutor, the Court instructed the jury on accessorial liability.
Following its deliberations, the jury rendered a verdict convicting defendant of burglary in the second degree and criminal possession of stolen property in the fourth degree.
At defendant's sentencing, Justice Massaro told defendant that he recalled vividly when the Court urged him to accept the disposition being offered by the People. Defendant addressed the Court and told the trial judge that he had his father and other people looking for Martin "to step up for his actions." He also denied his guilt in the pre-sentence investigation report.
Conclusion
In order to prevail on his claim the he was denied effective assistance of counsel, defendant must demonstrate that his attorney failed to provide meaningful representation in light of the circumstances of a particular case, viewed in totality. People v Turner, 5 NY3d 476 (2005); People v Caban 5 NY3d 143 (2005); People v Beneveto, 91 NY2d 708 (1998); People v Baldi, 54 NY2d 137 (1981).
On the issue of incompetency, defendant argues, essentially, that his attorney's argument that the People were required to prove (but could not) that he was in the apartment was based on a wholly erroneous understanding of the law. Defendant supports his allegations in a signed affidavit in which he swears that Cervini said to him "Trust me — you're just going to get criminal possession of Stolen Property." Defendant's aff. ¶ 6. Defendant swore that Cervini told him "we're going to beat this," and that there was "no evidence that you were in that apartment" (Defendant's aff. ¶ 6). Although defendant acknowledges that a plea offer was conveyed to him, he claims that Cervini emphasized, during those discussions, that there was no evidence that he was ever inside the victim's apartment. Cervini allegedly told defendant that, were he to go to trial, the most severe charge of which he likely would be convicted was criminal possession of stolen property.
Based on Cervini's advice, defendant claims that he did not understand, either before or during trial, that the jury could convict him of burglary under an acting in concert theory. Rather, defendant believed that the prosecution would have to prove that he entered the victim's apartment in order to convict him of burglary. Had Cervini told him that the jury could convict him of burglary simply by finding that he aided and abetted someone else who entered the victim's apartment, without ever finding that he himself entered the victim's apartment, he would have accepted the prosecution's plea offer of 5 1/2 to 11 years.
Based on Cervini's comments during this conversation regarding the strength of his defense of the burglary charges, defendant believed that the worst sentence he would receive at trial was substantially lower than the plea offer of 5 1/2 to 11 years, because at most he would be convicted of was criminal possession of stolen property. Several times prior to his trial, Cervini told him that with his "thirty years of experience" (defendant's aff. ¶ 11), there was no way that he was going to lose at trial on the burglary charges; it was defendant's understanding that to convict him of burglary, the jury would have to find beyond a reasonable doubt that he had entered the victim's apartment.
Cervini attacks the credibility of defendant's affidavit and directly contradicts defendant's assertions. Cervini states that he negotiated a very favorable plea agreement on defendant's behalf and repeatedly encouraged him to accept it. In his thirty years as a criminal defense attorney, Cervini states that he has never guaranteed a client that he or she would be acquitted after trial, because he knew that anything can happen during trial. Cervini further states that, given the overwhelming evidence against defendant, when defendant insisted on going to trial, his strategy was what he terms "jury nullification," in that he would attempt to convince the jury that defendant was guilty of the misdemeanor charge only. In particular, he states that he was always well aware that the jury could be instructed on an acting in concert theory even though that theory had not been charged in the indictment. As part of his trial strategy, Cervini did not seek suppression of the statements because a hearing would have been a waste of time, as these were post- Miranda statements where defendant voluntarily waived his Miranda rights. In addition, the statements were defendant's defense. The Court notes that even if the statements had been suppressed, defendant's Grand Jury testimony, which were consistent with those statements, could always be admitted as part of the People's case.
In his affidavit, Cervini states that his strategy was to negotiate a non-violent plea because defendant was a persistent violent felony offender. Cervini repeatedly advised defendant to accept the plea deal and told defendant that, if he went to trial, he would never be acquitted of the second degree burglary charge and would likely end up dying in prison. Cervini also specifically remembers asking the Court to allow defendant's daughters to approach the defense table prior to trial and told defendant that if he took the plea, he could dance at their weddings, but if he was convicted of the second degree burglary charge at trial, they would visit him in prison for the rest of their lives.
According to Cervini, defendant refused to accept the plea and insisted on going to trial because defendant believed that he would be acquitted of the second degree burglary charge, because the actual burglar — "Martin" — would back up his story. Although Cervini sent an investigator to find Martin, he was never located. Cervini states that he told defendant that even if Martin were found, he would likely never admit that he alone burglarized the apartment and even if he did, it would not matter, given the evidence against defendant.
The issue here is not whether defendant refused the plea offer or whether the offer was conveyed or recommended, but whether defendant was given the opportunity to make an informed decision, based on counsel's competent advise. In order to be entitled to a hearing, defendant must establish that the case involves controverted issues of fact not susceptible to resolution by other means. If Cervini's affidavit is true, he counseled defendant regarding the People's case against him with an understanding of the law in relation to the facts, but defendant, professing innocence, made an informed and conscious choice in proceeding to trial. Defendant argues that his decision not to plead guilty was heavily influenced by Cervini's appraisal of the prosecution's case against him, that his optimism about the possibilities for an acquittal were unfounded, given the well settled law on accessorial liability, and that what Cervini claims was strategy was merely uninformed confusion on this legal principle.
Under the circumstances present here, I find that defendant's submissions raise a question of fact as to the adequacy of Cervini's representation and that these factual issues necessitate a hearing. See CPL § 440.30 (5); see also People v Mendoza, 82 NY2d 415 (1993). It is only when the record conclusively demonstrates the falsity of the allegations and there is no reasonable probability at all the defendant's averments are true that a hearing will be denied. People v Guariglia, 303 NY 338 (1951). See also People v Coleman, 10 AD3d 487 (1st Dept 2004); People v Ausserau, 77 AD2d 152 (4th Dept 1980); People v McDaniel, 168 AD2d 926 (4th Dept 1990). At the hearing, defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion. CPL § 440.30 (6).
The sole issue to be dealt with at the hearing is whether the defendant received effective assistance in evaluating the plea offer made to him. The claim regarding ineffective assistance as to the general trial strategy is rejected, as defendant does not suggest that there existed any alternative trial strategy, to say nothing of one which had a greater chance of success; defendant's decision to make statements to the police following his arrest and to testify in the Grand Jury precluded Cervini from effectively challenging any of the People's witnesses as to his role in the burglary. Defendant — not Cervini — determined the trial strategy when he testified before the Grand Jury, prior to Cervini's entrance in the case. Likewise, Cervini's "failure" to move for a mistrial following the Court's ruling with respect to the acting in concert charge does not constitute ineffective assistance; there was no legal basis to move for a mistrial, as there was no "error or legal defect in the proceedings, or conduct inside or outside the courtroom, which [was] prejudicial to the defendant and deprive[d] him of a fair trial" [CPL § 280.10 (1)], and no court would have granted the application. Regardless of whether Cervini understood that the charge would be given, there was no alternative trial strategy available to him.
Cervini first appeared on June 6, 2006, at defendant's arraignment on the indictment.
The matter is hereby placed on the Court's calendar on February 2, 2009 for the scheduling of the hearing.
This constitutes the decision and order of the Court.