New York Criminal Lawyer Blog
A Kings Grand Larceny Lawyer said that, The defendant has made a motion pursuant to CPL 440.10(1)(b), (f) and (h) for an order vacating the judgment of conviction on the grounds that the judgment was obtained in violation of his “constitutional rights, ineffective counsel, and the judgment was procured by trickery, deceit and prejudical conduct on the part of my assigned attorney.” On June 14, 1994 this defendant was found guilty after trial of one count of robbery in the first degree; one count of grand larceny in the fourth degree; one count of criminal possession of stolen property in the fifth degree; and one count of criminal possession of a weapon in the fourth degree. On July 6, 1994, defendant was sentenced as second felony offender, to an aggregate term of imprisonment of twelve and one-half to twenty-five years.
A Kings Grand Larceny Lawyer said that, at trial it was sufficiently and credibly proven that on January 30, 1994, the defendant threatened the victim with a razor and forcibly stole property from him. In his motion the defendant specifically alleges the following: 1. He was denied his right to effective assistance of counsel because his assigned attorney did not “secure” his right to testify before the grand jury. 2. He was denied effective assistance of counsel because his attorney did not call a witness who would have allegedly provided exculpatory testimony. 3. He was also denied effective assistance of counsel because his attorney did not call him (the defendant) to testify at trial. 4. “The judgment was procured by trickery, deceit, and prejudical conduct on the part of my court assigned attorney not appearing in the trial record.”
A Kings Criminal Lawyer said that in support of the defendant’s first allegation that he was denied effective assistance of counsel because the defendant did not testify before the grand jury, the defendant, in his affidavit in support of his motion, dated March 25, 1995, stated the factual issues exist in my case as to whether my attorney received notice of the scheduled grand jury presentment, informed the people of my desire to testify, and/or signed a waiver without my knowledge. The record is completely barren with respect to why no motion was made to dismiss the indictment by my attorney when he learned I did not testify before the grand jury.
A Kings Robbery Lawyer said that, in opposition to this motion the following was credibly stated in response to the defendant’s allegation that he was denied effective assistance of counsel because the defendant did not testify before the grand jury. The Assistant District Attorney (ADA) affirmed that on January 31, 1994, “the defendant was arraigned in criminal court. On that date his attorney did not file notice to testify at the grand jury.” The defendant’s assigned counsel in an affirmation dated June 7, 1995, affirmed under penalties of perjury that: “Defendant has asserted that I failed to secure his right to testify before the grand jury. However, at the defendant’s criminal court arraignment, I gave him a detailed explanation of the grand jury process and together we weighted the pros and cons of him testifying. After this discussion between attorney and client, the defendant stated he did not wish to testify before the grand jury.”
The issue in this case is whether the judgment of conviction was obtained in violation of the constitutional right of the defendant on the ground of ineffectiveness of counsel.
The Court in deciding the case said that, what occurred in court on August 31, 1995 speaks for itself. The defendant was given more than ample opportunity to state whatever he wanted at the hearing. He was given ample opportunity to present witnesses to testify at the hearing that he requested. The defendant also was given an opportunity at this hearing to call and question his prior attorney. The defendant’s prior attorney was quietly sitting in the back of the courtroom during the defendant’s hearing. He had expected and was waiting to testify at the hearing. The defendant would not take any of these opportunities offered to him by the court. All he chose to do was to yell unfounded invective at the court. He refused to re-state or present anything new as regards the evil and patently untrue things he wrote in reference to his attorney.
On the issue of the defendant choosing not to testify at the grand jury.The advice of his attorney, to the defendant, not to testify and the defendant choosing not to testify, on its face, appears very reasonable considering that the defendant has five prior misdemeanor convictions and two prior felony convictions for robbery. The case law also does not support the defendant’s position. It is firmly established that the failure of defense counsel to secure a defendant his right to testify before the grand jury is not, in itself, ineffective assistance of counsel.
In any event it was credibly shown that at the criminal court arraignment the defendant’s attorney gave the defendant “a detailed explanation of the grand jury process” and they both “weighted the pros and cons of him testifying.” It was also credibly shown that it was the defendant who then decided not to testify at the grand jury. Therefore the defendant himself decided not to testify and has a great deal of nerve complaining about it now.
Defendant’s motion to vacate his convictions on the ground that his attorney was ineffective for not calling either a witness or the defendant, at this trial also lacks merit and is denied. Defendant’s trial attorney credibly stated in his affirmation that after the people rested on June 13, 1994, that he had an “extensive discussion” with the defendant as to whether the defendant should testify, and that the defendant decided that he “felt that there was reasonable doubt.” Defendant’s attorney also credibly affirmed that he spoke to this so called witness and believed that he would not have been a helpful witness. Please read defense attorney’s affirmation paragraph number four for some of the facts in which defendant’s attorney based that opinion. Defendant’s attorney discussed all this with the defendant and it was credibly shown that it was the defendant who ultimately decided not to testify or have his witness testify at trial. Therefore, if he so strongly wanted to testify and/or have the witness testify, then why did he not complain about this during his trial. It is now about one year after the defendant’s trial.
The defendant’s final ground for vacatur also totally lacks merit and is also denied. This ground appears to be that the defendant’s attorney was ineffective due to the allegation that the attorney was a complete and total racist. The claim is not made out, and is in no way credible. There is not a scintilla of evidence to support these remarks. The claim has not been substantiated by either direct or circumstantial evidence. Defendant’s attorney, during this trial and prior to this trial has shown himself to me, to be of the highest moral character. He was and is a gentleman. The defendant at the hearing on August 31, 1995 did not have the courage to tell his prior attorney to his face the untrue statements of which he accuses him in writing. It is really a shame that good people have to put up with the publishing of such untrue material. I have known the defendant’s attorney for many years. As both a legal aid society attorney and as an attorney in private practice. He had been aggressive and sometimes head strong, once perhaps even overzealous pertaining to the rights of his client. Never, not once in all this time did he ever cross the line and disrespect the court. Ultimately he was always a gentleman. Never once have I heard any complaint about his conduct, nor his professional ability, from anyone including but not exclusive of his hundreds of clients, nor from other judges, nor from non-judicial personnel. The low pay of the “18B Plan” does aggravate the insults these poor lawyers have to take. It does hurt when one works at slave wages, and has to take insults in the bargain. It is a shame that such a nice young attorney must take this abuse. He is after all, a doctor of law, with four years of college, three years of law school, and God only knows how much more time to pass the bar. He is motivated then to help people, a noble and altruistic drive, manifested by his prior employment for the legal aid society. The worst of the net effect of this problem is that he has no redress, no way of defending himself.
The insults to the court are not only untrue, but undeserved. There was not a scintilla of anything referencing race during the entire trial. Nothing, not in any direction, yet out of the blue the defendant calls me names. It is not fair. All of this is truly dangerous, and is also corrosive to our system. This type of off the wall smear is being institutionalized in such proceedings over and over again. The legislature should examine cases like this towards some redress. To fashion some reform, some remedy.
That’s the end of what defendant said. I go further and circumstantially suspect this is where most of this disinformation begins. Firstly, I have been doing this many years, and one set of papers looks much like the others, they contain “boiler plate” material, which could be easily stored in file cabinets and reproduced quite similarly in case after case. This whether or not there is total application to the facts in succeeding cases. Secondly, so much of the material repeats basic law school constitutional law, basic cites and old similar cases like “Mapp” and “Huntley,” etc. Lawyers do not give cites for them. They just call it a “Mapp hearing” or a “Huntley hearing”. Lawyers do not talk this way. Yet seldom do we find an updated or new case cited. Thirdly, racism is very often thrown in, without a scintilla, or an iota of evidence. This proves the “law library clerk” did not even read the record of the trial, and did not know anything of what happened or did not happen as a matter of fact. Fourthly, some of these cases refer to the same grounds, using the same unsubstantiated claims such as: a. Defendant not advised to testify at grand jury; b. Defendant not advised reference defendant testifying; c. Defense attorney refused a defendant proffered witness during trial; d. The attorney called him racial names. Fifthly, the sophomoric nonsense of spending a half hour on a detailed allocution of sworn guilt by the defendant, discussing the law and the facts at length, and then defendant reversing himself, saying the opposite, denying his guilt to Probation later on. The defendant having made that point to Probation, reduced to an official report, the defendant will argue and be able to swear to the parole board that they always claim that they were not guilty. Nevertheless none of this seems to stop them from being able to re-swear to their guilt before me at sentencing, a second time, and then demand that the original low plea-bargain sentence be given to them.
Accordingly, the court held that, after due deliberation and consideration of all papers submitted in support and in opposition to this motion and upon the hearing held on August 31, 1995, the defendant’s motion for an order vacating the judgment of conviction is denied.
The right to effective assistance of a counsel is a constitutional right; if such right has been violated seek the assistance of a Kings Grand Larceny Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates. Call us for free leganadvice.