People v. Nicelli

Oct 29, 2014
2013-05892
Versions:121 A.D.3d 1129
994 N.Y.S.2d 422

Ordered that the order is affirmed.

The defendant contends that he was deprived of the effective assistance of counsel based upon, among other things, defense counsel‘s failure to adequately inform him of a proposed plea agreement, whereby his sentence would have been limited to five years in prison. In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel‘s failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him, and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement (see People v Maldonado, 116 AD3d 980 [2014]; see also Missouri v Frye, 566 US —, 132 S Ct 1399 [2012]; Lafler v Cooper, 566 US —, 132 S Ct 1376 [2012]).

Here, the Supreme Court properly determined that the defendant failed to establish that, when the plea offer was allegedly made in November 2005, which was prior to his indictment, there was a reasonable probability that he would have accepted the plea offer, and a failure to accept it was attributable to ineffective assistance of counsel. Moreover, the defendant failed to establish that he received ineffective assistance of counsel with respect to his counsel‘s assessment of the strength of the People‘s case and his counsel‘s advice regarding the sentence he was likely to receive. “‘[T]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel‘s failure . . . . Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment‘” (People v Barboni, 21 NY3d 393, 405-406 [2013], quoting People v Rivera, 71 NY2d 705, 709 [1988]). The defendant failed to meet this burden (see People v Barboni, 21 NY3d 393 [2013]).

The defendant‘s contention that he received ineffective assistance of counsel with respect to the issue of whether he was competent to stand trial and/or plead guilty is not properly before this Court.

The defendant‘s contention that the Supreme Court improperly questioned witnesses at a hearing is unpreserved for appellate review (see CPL 470.05 [2]; People v Henderson, 83 AD3d 864 [2011]), and, in any event, without merit (see People v Acosta, 241 AD2d 385 [1997]; see also People v Henderson, 83 AD3d 864 [2011]). Balkin, J.P., Leventhal, Chambers and Hinds-Radix, JJ., concur.