Opinion
No. 2014/10.
2012-03-29
The PEOPLE of the State of New York, Plaintiff, v. Michael VERNI, Defendant.
Ushir Pandit, Assistant District Attorney's Office, for plaintiff. Guy Oksenhendler, Esq., for defendant.
Ushir Pandit, Assistant District Attorney's Office, for plaintiff. Guy Oksenhendler, Esq., for defendant.
STEPHEN A. KNOPF, J.
The defendant, Michael Verni, has filed a motion and reply with this Court seeking an order of this Court setting aside the verdict pursuant to CPL 330.30, in the above-captioned indictment or in the alternative, a hearing on the matter. In his application, the defendant alleges that first, there was a violation of his right to effective assistance of counsel in that his attorney failed to convey a plea offer to him, and second, that his right to a fair trial by a fair and impartial jury was prejudiced by the fact that a sworn juror did not disclose that she was the defendant's former neighbor and had a bias against him. The defendant has submitted an affidavit from his trial counsel, and his own personal affirmation. The People oppose the application in a response and reply and submit an affidavit from the juror at issue, Ms. Kathleen Bailey.
PROCEDURAL HISTORY
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.
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 and defense counsel to determine if there was a possibility of disposition. At this time, there was discussion related to the subject of a pre-indictment offer of probation and a program by the People. It was at this time that defense counsel indicated he was not aware of such an offer but that had there been such an offer, his failure to convey such an offer to the defendant would constitute ineffective assistance of counsel. Defense counsel further remarkably stated, in sum and substance, that if there was a conviction herein, defendant would be retaining new counsel to argue this very claim. On September 16, 2011, the defendant was convicted of criminal possession of a weapon in the second degree.
LEGAL ANALYSIS
Criminal Procedure Law 330.30 mandates under what circumstances a verdict of guilty may be set aside. In relevant part:
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
2. That during the trial there occurred, out of the presence of the court, improper conduct by a juror ... which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict ...
Criminal Procedure Law 330.40 provides, in relevant part, the procedure a court must follow in considering an application to set aside a verdict:
2. A motion to set aside a verdict based upon a ground specified in subdivision two and three of section 330.30 must be made and determined as follows:
(a) The motion must be in writing and upon reasonable notice to the people. The moving papers must contain sworn allegations, whether by the defendant or by another person or persons, of the occurrence or existence of all facts essential to support the motion. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief;
(e) The court may deny the motion if:
(i) The moving papers do not allege any ground constitutinglegal basis for the motion; or
(ii) The moving papers do not contain sworn allegations of all facts essential to support the motion.
Criminal Procedure Law 270.20 describes the grounds whereby a prospective juror may be challenged for cause. In relevant part:
1. A challenge for cause is an objection to a prospective juror and may be made only on the ground that:
(b) He has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial ...
The People assert that there is a procedural bar in reviewing this defendant's application, pursuant to CPL 330.30(1) and (2). Notwithstanding such arguments by the People this court will decide the defendant's application on its merits.
It is clear that the Sixth Amendment provides a defendant with the right to effective assistance of counsel. See, Strickland v. Washington, 466 U.S. 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 v. Washington, 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 N.Y.2d 708, 712 (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 A.D.2d 461 (2d Dept.1995).
What constitutes effective assistance of counsel is unique to each case and each representation. See, Benevento, generally. See also, People v. Baldi, 54 N.Y.2d 137 (1981). As such, a reviewing court's scrutiny of counsel's actions should be “highly deferential.” Strickland at 689. To prevail on this claim, the defendant must clearly establish “... the absence of strategic or other legitimate explanation for counsel's alleged short comings ...” Benevento at 713.
“It is not for this court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation.” See, People v. Satterfield, 66 N.Y.2d 796,799–800 (1985). “However, mere losing tactics must not be confused with ineffectiveness, and a contention of ineffectives requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics ...”. People v. Gordon, 248 A.D.2d 634 (2d Dept.1998).
“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 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 A.D.2d 755 (4th Dept.2000).
In the defendant's affirmation, he complains that he was not specifically advised of any plea offer. However, the defendant does not state he would have accepted a plea offer, or even take responsibility for the offense, as mandated by law. The defendant has not even submitted a sworn statement that he would have accepted a disposition in this case; a condition precedent to this relief. See, Fernandez, supra, at 813. See, also People v. Howard, 12 AD3d 1127 (4th Dept.2004).
Additionally, a review of the affidavit submitted by defendant's trial counsel, Mr. Merrill Rubin, Esq, reflects specifically that prior to trial he did not inform the defendant of any plea offer made by the prosecution in the case regarding a mental health component as a part of the agreed upon sentence' [Defendant's motion, exhibit A]. This Court finds this submission somewhat vague, in that the affidavit did not deny plea discussions took place; only that an offer involving a mental health component was never conveyed to the defendant.
Moreover, there is insufficient basis for this Court to conclude that a firm plea offer was actually made in this case. There was reference to the fact that the Bureau Chief in the District Attorney's office was willing to offer defendant a plea involving mental health treatment if defendant was interested in such an offer. There is no record as to what charge the defendant would plead guilty to, to wit: a felony or misdemeanor. Defense counsel stated that his recollection was that this “... was not the way discussions took place”. Defense counsel further stated that he did not believe such an offer was ever conveyed to him and that he did not convey “such an offer” to the defendant. Upon inquiry by the Court as to whether counsel would have conveyed an offer to his client upon learning of an offer by the People, counsel replied: “Absolutely”.
Thus at best, the record establishes only that while there were discussions between the People and defense counsel, there was no meeting of the minds as to a formal plea offer being made to the defendant and no agreement on a firm offer. The record further establishes that if there had been, such a firm offer, it would have been conveyed to the defendant by defense counsel.
This Court also notes that while the United States Court of Appeals for the Second Circuit has commented on claims of this nature, the federal standard for establishing that a defendant was provided with less than meaningful representation is somewhat different from the law of New York state. See, Boria v. Keane, 99 F 3d 492 (2d Cr.1996). Strickland, supra, Baldi, supra. As enumerated in Strickland at 687, a convicted defendant must show that counsel's performance was so defective to require reversal of a conviction by satisfying a two-part test. “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial ...”. In fact, on March 21, 2012, the United States Supreme Court, in Missouri v. Frye, reaffirmed the holding of Hill v. Lockhart, 474 U.S. 52, 57 (1985) stating that, “... claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test in Strickland ...”. Missouri v. Frye, ––– U.S. ––––, 2012 WL 932020 (U.S.Mo .). See also, the companion case of Lafler v. Cooper, ––– U.S. ––––, 2012 WL 932019(US) (also decided March 21, 2012). There is still a requirement that the defendant show prejudice, and that in fact, he would have accepted an offer or disposition prior to trial. The defendant must show that but for the ineffective advise, the plea offer would have been not only presented to the Court without the prosecution canceling it, but that the Court would have accepted its terms, resulting in a less severe sentence. This has not happened here.
Accordingly, a review of the facts and circumstances of this case against a backdrop of the relevant statutory and case precedent reflect that the defendant's motion to set aside his conviction based upon his claim of ineffective assistance of counsel is unsupported in fact or law.
It is fundamental that “[a] defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice' .... To safeguard this right, the Legislature has enacted provisions affording criminal defendants the ability to participate fully in the selection of the jury' ... These protections ... found to be adequate under the State Constitution ..., range from the right to a jury chosen according to law ... to the right to remove a juror who is grossly unqualified' to serve”. People v. Rodriguez, 100 N.Y.2d 30, 33–34 (2003).
“Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically. Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered. People v. Brown, 48 N.Y.2d 388, 394 (1979).
However, a motion made to set aside a verdict must be denied “... where the juror misconduct was allegedly known to a defendant and the defendant had the opportunity to act on the information but failed to do so prior to the verdict”. People v. Walsh, 222 A.D.2d 735,736 (3d Dept.1995). “To object successfully to a juror's misconduct after a verdict, a defendant is required to demonstrate that the objectionable conduct was not known to him before the verdict, and that it would not have been disclosed by a proper inquiry before the jury was sworn ...”. People v. Owens, 191 A.D.2d 715, 716 (2d Dept.1993). Indeed. “... a post verdict objection to a juror will only be considered where a defendant shows that the grounds for the challenge were unknown to him beforehand and would not have been disclosed by a proper inquiry during voir dire ...”. People v. Hammond, 132 A.D.2d 849,850 (3rd Dept.1987).
In People v. Owens, supra, the defendant attempted to set aside his verdict pursuant to CPL 330.30(2) based on a claim that a juror failed to disclose during voir dire that she knew the defendant. The day after the verdict was rendered, the defendant claimed that he suddenly realized that he knew the juror, relating in an affidavit his extensive knowledge of the juror's family, a description of the juror's residence, her vehicle, and the family dog. The Owens court found that because the defendant did not reveal this information prior to the jury being sworn and had ample opportunity to do so, he was not entitled to this relief.
In People v. Walsh, supra, the defendant sought to set aside his verdict pursuant to CPL 330.30(2) based on alleged juror misconduct. Here, the defendant withheld knowledge of this alleged misconduct for 4 days and failed to disclose it to his counsel and to the court until after the verdict was rendered. The Court denied the defendant's application finding that the defendant had ample opportunity to act on this information but failed to do so prior to the verdict. Walsh, supra at 736.
However, in People v. Harding, supra, a new trial was ordered, Here, it was established that the juror at issue knew the defendant for many years prior to the trial, and in fact, harbored a grievance against him because the defendant had run around' with the juror's wife. A new trial was ordered in the interest of justice. For this reason and other violations, the Harding court commented that ... “We lean to the view also that there are grounds for suspicion that the defendant was aware of Jackson's [the juror's] identify at the time the latter was chosen as a juror, and that he was not without guile when he permitted him to be chosen as a juror; and that he disingenuously concealed this recognition for the purpose of later challenging the verdict for bias”. Harding at 801.
As to the defendant's claim herein, while the defendant contends he had a negative encounter with Ms. Bailey's husband many years earlier, Ms. Bailey swore in her affidavit submitted to this Court that she did not know the defendant, or recognize him as anyone other than the defendant at the trial of this matter. What counts here is not what was allegedly apparent to the defendant, but what was in the mind of the juror alone. Under these circumstances, there is absolutely no basis for this Court to conclude, let alone suspect, that the juror could be biased against the defendant, an individual who she did not know.
Accordingly, the Court finds no legal reason for this verdict to be set aside. There is no factual issue that requires a hearing on this matter. As such, the defendant's motion pursuant to CPL 330.30 is denied in its entirety.
The foregoing constitutes the order, opinion and decision of this court.