Tagged: due diligence

An Ineffective Assistance of Counsel Claim Divides the NYCA

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On November 23, 2015, the N.Y. Court of Appeals issued a decision in People v. Harris, 2015 N.Y. Slip Op. 08607 (Nov. 23, 2015) that split the Court 4-2 on application of the law of ineffective assistance of counsel (IAC).

The facts of the case were that in 2002 a man surreptitiously entered a dwelling where a woman was sleeping. The man masturbated nearby the woman and fled when she awoke. The woman subsequently noticed that a pair of her earrings was missing. Based on DNA evidence processed several years later, the prosecution identified defendant as the man involved and indicted him on a misdemeanor count of petit larceny (for theft of the earrings) and a felony count of second-degree burglary (for unlawfully entering a dwelling with intent to commit a crime therein).

There was just one problem with the prosecution’s case: the limitations period for the petit larceny count, even allowing for tolling, had expired more than a year before the indictment.

Nevertheless, the prosecution pursued the petit larceny charge at trial and used its underlying facts to support the burglary charge, the prosecution’s theory being that defendant had an intent to steal when he entered the dwelling. This decision would lead the Court of Appeals to comment on the need for “responsible charging practices.” But on appeal, focus would not be on the prosecutor’s decision but on the question: Why did defense counsel not seek dismissal of the time-barred larceny count?

At trial, defendant was convicted on both charges. On appeal, the defendant argued that his attorney was ineffective by failing to obtain dismissal of the larceny count. The issues were (1) whether counsel had a reasonable strategy in letting this charge go forward and (2) whether this singular error – if indeed it was such – could support an IAC claim.

As to the first issue, the majority stated that a finding of guilt on the larceny count would “as a practical matter have dictated a finding of guilt on the burglary count as well,” and so failure to obtain dismissal of the larceny count was “objectively incapable of enabling any compromise verdict.”

The dissenters noted, however, that even had the larceny count been dismissed, evidence relating to this uncharged crime would still have been admissible to support the intent element of the burglary charge – a possibility the majority did not deny. Accordingly, the dissenters concluded that counsel might have wanted to provide opportunity to convict only on this misdemeanor charge – an opportunity that would have been precluded were the charge dismissed.

As to the second issue, the Court’s precedents state the rule that an IAC claim requires assessment of counsel’s overall representation. So the question was whether a single error in otherwise unquestioned performance could support the IAC claim in Harris. The Court relied on its earlier decision in People v. Turner, 840 N.E.2d 123 (N.Y. 2005), in which it held that a singular error to obtain omission of a time-barred charge was prejudicial in a case where the time-barred count was the only one on which the jury convicted. Writing for the Court, Judge Robert Smith noted that Turner “may be the first [case] this Court has encountered” in which a singular error required a finding of constitutionally deficient performance.

The Harris majority understood Turner to create a “freestanding” exception to the overall assessment rule for cases where counsel’s only error was omission to seek dismissal of a time-barred charge. The dissenters interpreted Turner as instead upholding the overall assessment rule, while allowing that a single questionable decision of whatever sort can sustain an IAC claim only if that decision discloses ineffectiveness in overall performance.

This disagreement also implicated the issue of remedy. The majority interpreted Turner broadly to apply wherever unreasonable omission to obtain dismissal of a time-barred charge results in conviction on that charge. Accordingly, in Harris the majority granted only partial relief, reversing the larceny conviction but not the burglary conviction. The dissenters found this partial relief, grounded in “charge by charge analysis,” unprecedented. Given their understanding that focus must be on counsel’s overall performance, the dissenters stated that the proper remedy, assuming IAC is found, would have to have been comprehensive.

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Prosecutor Accountability for Appellate Delays

DA Mary Rain recently had to defend an extensive appellate delay caused by one of the attorneys in her office.  Is there a better solution to extensive delays in criminal appeals?

Focus on Collateral Consequences of Conviction

BY: Lissa Griffin & Lucie Olejnikova

As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.

NICCCThe ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.

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Governmental Publication

Sunshine on the Parole Process

A Columbia County Supreme Court Judge has ordered a new parole hearing for a defendant convicted of murder and sentenced to 20 years to life imprisonment who has already served 32 years in prison. The defendant had sought to produce the minutes of his original sentence, which he claimed contained a sentencing recommendation and showed that the sentencing court had decided to impose a 20 year minimum and rejected the maximum of 25 years to life. The district attorney’s office claimed that despite numerous attempts to locate the original sentencing minutes they could not be found.

The judge’s chambers undertook its own search and found the minutes within approximately 30 minutes.

The court expressed concern about the district attorney’s conduct and characterized it as either lack of diligence or deliberate indifference. It expressed concern that the conduct was routine, and declined to wait until it could be determined if that conduct was sanctionable.

A tip to practitioners: the court’s search had uncovered a 2008 letter from the chief court reporter for Nassau County that indicated  the minutes were not unavailable. The court noted, however, that under 22 NYCRR §800.9(b)(5), sentencing minutes are required to be part of the record on appeal from a conviction and are archived by the State Library.

The court also took the parole board to task for considering materials, including victim impact statements,  that contained “unfounded assertions” and were “emotional,” “extremely inflammatory.” It also criticized the parole board for failing to comply with N.Y. Executive Law §259-i(2)(a), which requires that the board’s recommendation against parole directly address comments before the board.

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