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#286 Third Department Caselaw Round-Up for January 12, 2012, Part 14 of 14

February 10, 2013

143 Post 01-12-12, Part 14 Third Department January.pngGet it on the record!

Both cases are from Judge Hall, in Warren, and both revolve around claims of ineffective assistance of counsel. The first pertains to the stupidity of being a foreign national and committing a crime here (say goodbye!), and making sure that a good record is made by the attorney. The second pertains to a defendant who feels like his attorney threw him under the bus - and no record to be able to defend the attorney's actions!

Also: we finally reach the two-thirds mark in cases that are affirmed on appeal.


29-20 Post Warren County.pngCase #128
#103540
People v. Achouatte, ___ A.D.3d ___, ___ N.Y.S.2d ___
Warren County - Hall
Issues: Criminal Charges; Ineffective Assistance of Counsel
Cited statutes: CPL §440.10; 8 USC §1101 & 1227
Affirmed

The defendant was convicted, via his plea, to the crime of criminal possession of a controlled substance in the fourth degree, for which he was sentenced to three years in prison and two years of post-release supervision. The defendant appealed, claiming that he was denied the effective assistance of counsel.

The defendant is a Moroccan citizen. The Third Department found that while there was "scant reference" to the operative law pertaining to the defendant's possible deportation, namely the Immigration and Nationality Act, there was nonetheless "little question" that the defendant's plea would render him subject to deportation.

Furthermore, the court found that the defendant was made repeatedly aware of this possibility (likelihood?). The matter was discussed at the pretrial conference and the trial court actually granted the defendant additional time so that he could consider his options. Upon returning to court, the defendant's attorney requested a further adjournment, this time to enable the defendant to consult with the immigration attorney his family had retained for him.

Defense counsel made clear, on the record, that "I am not an immigration lawyer, but ... this ... has some very serious ramifications for you. So I think it's a good idea that you talk to an immigration attorney."

Later, presumably after speaking with the immigration attorney, the defendant indicated that he wished to plead to the charge. The trial court made clear to the defendant that it had no control whatsoever over the defendant's immigration status, once the defendant pled to the charge. To defense counsel's credit, it was placed on the record that the defendant's criminal charges had in fact been reviewed by the immigration attorney who, in turn, represented that "such a plea would afford an opportunity to fight perhaps deportation but certainly be able to fight [defendant's] exclusion from the country".

The bottom line for attorneys? Get everything on the record and you should be okay.


Case #129
#103899
People v. Davey, ___ A.D.3d ___, ___ N.Y.S.2d ___
Warren County - Hall
Issues: Criminal Charges; Ineffective Assistance of Counsel
Cited statutes: CPL §440.10 & 440.30; Penal Law §170.25
Reversed

The defendant was convicted, via his plea, to the crime of criminal possession of a forged instrument in the second degree, for which he was sentenced to five years of probation. However, while on probation, the defendant was charged with additional crimes. As a result, the defendant was convicted of violating his probation and was sentenced to 2 1/3 to 7 years in prison. The defendant then appealed his initial conviction.

This case turns on the availability of a defense to the crime of criminal possession of a forged instrument and whether or not the record illustrates that the defendant was made aware of this possible defense by his attorney. Unfortunately, for his attorney, the record is silent. Worse, the defendant claimed that his attorney never informed him of a possible defense to the crime for which he ultimately pled guilty.

The Third Department pointedly stated that "nothing in the record reveals that [the defendant] was aware of this potential defense and knowingly waived it when he entered his plea". Therefore, since the record is silent, "there are factual issues as to whether [the defendant] received effective assistance that cannot be resolved without a hearing".

This was an excellent result. And it should force all attorneys to be extremely cognizant of the pressing need to ensure that anything of importance to the case is clearly and explicitly included on the record.


Caselaw Round-Up Score Card:

Affirmed: 86 (66.67%) [TWO THIRDS!]
Decision Withheld: 6 (4.65%)
Dismissed: 8 (6.20%)
Modified: 11 (8.53%)
Reversed: 18 (13.95%)

Total: 129