Thе People of the State of New York, Respondent, v David Garcia, Appellant.
First Department
May 19, 2005
795 N.Y.S.2d 216
The People of the State of New York, Respondent, v David Garcia, Appellant.
First Department, May 19, 2005
Michele Hauser, New York City, for appellant.
Robert M. Morgenthau, District Attorney, New York City (Karen Schlossberg and Gina Mignola of counsel), for respondent.
OPINION OF THE COURT
Saxe, J.P.
Defendant correctly asserted, in his pro se motion pursuant to
On December 17, 1996, the court dismissed the initial robbery indictment obtained against defendant, with leave to re-present, based upon the violation of defendant‘s right to testify before the grand jury (
The correct range of sentences for the top charged count of robbery in the first degree, a class B felony, as a second violent felony offender, was actually a determinate sentence between 10 and 25 years (
Defendant rejected the 16 years to life offer and testified before the grand jury, and was again indicted for robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the second degree. After his conviction at trial, he was sentenced as a second violent felony offender to an aggregate determinate term of 25 years. This Court affirmed the conviction (277 AD2d 68 [2000], lv denied 96 NY2d 759 [2001]).
Although his moving affidavit is inartfully phrased, defendant‘s motion to set aside the conviction is premised upon the assеrtion that while he felt induced to reject the offer of 16 years to life, it was reasonably probable that he would have accepted a plea bargain and not proceeded to trial if counsel had determined and pointed out his actual sentencing status, correctly informed him of the possible range of sentences in the event of conviction, and elicited a plea offer from the prosecutor reflecting defendant‘s actual sentencing status.
Admittedly, defendant‘s initial moving affidavit reflects that at the time of the
In order to be entitled to reversаl for ineffective assistance of counsel under the federal constitutional standard, a defendant must demonstrate that counsel‘s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different (see Strickland v Washington, 466 US 668, 688, 694 [1984]; Pham v United States, 317 F3d 178, 182 [2003]). Under the New York State standard, prejudice is examined more generally, and the question is whether the defendant received meaningful representation, an inquiry which focuses on the fairness of the prоceedings as a whole rather than any particular impact on the outcome of the case (see People v Henry, 95 NY2d 563 [2000]; People v Benevento, 91 NY2d 708 [1998]).
That the first prong of the test is satisfied, in that counsel‘s representation fell below an objective standard of reasonableness, is established by Mask v McGinnis (28 F Supp 2d 122 [1998], affd 233 F3d 132 [2000], cert denied 534 US 943 [2001]). The Mask case, like the mаtter now before us, involved a mistaken belief on the part of counsel and the court that the defendant was a persistent violent felony offender. In that case, notwithstanding this Court‘s decision on direct appeal that there was “no reasonable probability that a more favorable plea bargain would have been struck but for the mistake” (People v Mack [also known as Mask], 223 AD2d 383 [1996], lv denied 88 NY2d 989 [1996]), a writ of habeas corpus was granted to the defendant by the Federal District Court (see Mask v McGinnis, supra). With respect to the first prong of the Strickland standard, the federal court held that due to counsel‘s failure to detect and correct the court‘s and prosеcutor‘s mistaken impression of defendant‘s sentencing status during plea discussions, the defendant “was not properly advised and he was not properly represented in the plea negotiations” (28 F Supp 2d at 125).
The second prong of the Strickland test requires a showing that the defendant was prejudiced by counsel‘s failure, generally by showing “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different” (Strickland, 466 US at 694). In Mask, that standard was satisfied, since the submitted documents established that (1) the defendant asserted that while he rejected the plea
Here, giving defendant appropriate leeway in his choice of words, the motion court should have directed a hearing to determine, as a factual matter, whether there was a reasonable probability that a more favorable рlea bargain acceptable to defendant would have been struck but for the mistake. This question of fact requires determination of both (1) whether the prosecutor, had his misapprehension been corrected, would still have offered defendant a plea to a class C felony, carrying a determinate sentence somewhere between 7 and 15 years, and (2) whether defendant would have accepted such a plea offer.
As to whether the prosecutor, if properly informed, would have offered a more acceptаble or reasonable sentence, we note that although there was only a short period in which the prosecutor was willing to negotiate a plea, he did, in fact, offer what he believed to be as low a sentence as he could offer, after a reduction in the сharge. Indeed, the Assistant District Attorney even appears to have been willing to go back to his superiors, at the court‘s suggestion, to have them consider a plea to a D felony, indicating that he harbored no principled objection to a term less than 16 years to life. While there is no guarantee that the People would have offered a plea to a C violent felony with a far lower sentence than that offered, had they known defendant‘s true status, the offer to the minimum sentence available on the reduced charge is enough of a showing to warrant a hearing on the article 440 motion to determine whether the People would have made a significantly more favorable offer to defendant had they known his actual status.
A hearing is also in order to determine whether there is a reasonable probability that dеfendant would have accepted such
Thus, while defendant‘s papers do not definitively establish a reasonable probability that but for counsel‘s error, he would have been offered, and would hаve accepted, a reasonable plea offer, in view of counsel‘s established failure, his assertions were enough to require a fact-finding hearing to determine whether there is a reasonable probability that a more favorable plea offer would have been made and accepted.
In rejecting defendant‘s claim that it was highly possible that he would have accepted a more favorable plea, the motion court reasoned that the claim was contradicted by defendant‘s steadfast protests as to his innocence. However, insistence on one‘s innocence is merely a factor weighing against defendant‘s credibility when considering his assertion that he would have accepted a plea bargain, and is not dispositive of the issue (see Cullen v United States, 194 F3d 401 [2d Cir 1999]).
Finally, in Pham v United States (317 F3d 178 [2003], supra) the court remarked that even thоugh the defendant there had presented no objective evidence other than his self-serving statements that he would have accepted the plea offer that his attorney failed to convey, “a significant sentencing disparity in combination with defendant‘s statement of his intentiоn is sufficient to support a prejudice finding” (id. at 182). Here, there was a significant disparity between the sentence offered and one which could have been offered had the true facts been pointed out: an indeterminate term of 16 years to life leaves the possibility that the dеfendant may be denied parole and remain in prison for his entire life, while a determinate term of seven years is substantially less, and even a determinate term of 15 years guarantees that the defendant will be released by the end of that term.
Under these circumstances, we remаnd for an evidentiary hearing to determine whether it is reasonably probable that a plea bargain acceptable to defendant would have been reached but for counsel‘s failure.
Friedman, Nardelli, Gonzalez and Catterson, JJ., concur.
Order, Supreme Court, New York County, entered on or about February 7, 2003, reversed, on the law, and defendant‘s motion granted to the extent of remanding the matter for an evidentiary hearing to determine whether it is reasonably probable that a plea bargain acceptable to defendant would have been reached but for counsel‘s failure. Appeal from order, same court, entered on or about June 16, 2003, dismissed, as no appeal lies from the denial of a motion to reargue.