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The United States Supreme Court


In August1995, after a jury trial, defendant was convicted of committing the crimes of Kidnapping in the First and Second Degrees and Unlawful Imprisonment in the Second Degree. Thereafter, he was sentenced to an indeterminate term of imprisonment of from fifteen years to life on the top count and to concurrent terms of incarceration on the lesser crimes.

A Queens County Criminal attorney said that in January 1995, defendant forced the complaining witness, from her home by threatening to kill her. Thereafter, he restrained her with an extension cord, gagged her mouth with a sock and placed her in his car. Co-defendant joined them sometime later and pointed a gun at the complaining witness. Together they took her to Forest Park, located in Queens County, where they used duct tape to tie her to a park bench. Subsequently, they placed her back in the car and drove to a telephone from which they called the victim’s mother in an effort to extract a ransom from her. When her mother agreed to pay it, the victim was released. Evidence against the defendant included a post-arrest videotaped statement wherein he admitted to certain of the acts underlying the charges and a tape recording of the ransom demand made during the conversation with the victim’s mother.

Almost eight years after his conviction of the crime of Kidnapping in the First Degree was affirmed by the Appellate Division and his application for leave to appeal the criminal conviction to the Court of Appeals was denied, defendant now moves to vacate the judgment pursuant to CPL 440.10 on the ground that he received ineffective assistance of counsel. He claims that he rejected the plea offer because his lawyer advised him that he would only be convicted of a misdemeanor, exposing him to a maximum sentence of one year.

The burden of proof is on the defendant to establish that he was denied effective assistance of counsel. A hearing was held before this Court on defendant’s motion to vacate his judgment of conviction. At the hearing, defendant called 2 witnesses. He also testified on his own behalf.

Both the Federal and State Constitutions guarantee criminal defendants the right to effective representation by counsel. This includes the right to effective assistance of counsel.

The Federal test for evaluating ineffective assistance of counsel claims is set forth in a criminal case law. Generally, there is a strong presumption that counsel’s conduct falls within “the wide range of reasonable professional assistance”. To overcome the presumption of effective representation, a defendant must demonstrate that (1) the attorney’s performance was deficient as measured by objective professional standards, and (2) but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different.

The United States Supreme Court has held that the touchstone of the second prong of the analysis is whether counsel’s performance rendered the proceeding fundamentally unfair or left an unreliable result.

As explained by the Second Circuit United States Court of Appeals in a landmark criminal case, , “the performance inquiry is contextual; it asks whether defense counsel’s actions were objectively reasonable considering all the circumstances.

When assessing whether or not counsel’s performance falls below an objective standard of reasonableness under prevailing professional norms, the criminal case requires a court to consider the circumstances counsel faced at the time of the relevant conduct and to evaluate the conduct from counsel’s point of view. The United States Supreme Court has expressly extended the application of the case law standards to ineffective assistance claims arising out of the plea process.

Professional standards governing an attorney’s performance in his representation of a client who is deciding whether to accept a plea offer require: (1) that defense counsel give the client the benefit of his professional advice on the crucial decision of whether to plead guilty; and (2) that counsel leave the ultimate decision of whether to plead guilty to the defendant.

As part of his advice, counsel must communicate to the criminal defendant the terms of the plea offer, , and should usually inform the defendant of the strengths and weaknesses of the criminal case against him, as well as the alternative sentences to which he will most likely be exposed. Additionally, in representing a client at this critical time, an attorney who renders effective assistance should take into account, among other things, the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea, whether the defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision. A lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In a criminal case, the lawyer shall abide by the client’s decision, after their consultation, as to the plea to be entered. The lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. An attorney has an affirmative duty to avoid exerting undue influence on the accused’s decision and to ensure that the decision is ultimately made by the defendant.

The United States Supreme Court stated in the landmark case that counsel’s conclusion as how to best advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea, enjoys a wide range of reasonableness because representation is an art and there are countless ways to provide effective assistance in any given criminal case. The Counsel need not advise his client in so many words about whether or not to plead guilty, so long as he advises on the factors necessary to allow a defendant to make an informed decision.

The testimony offered by the defense, that the lawyer, in effect, guaranteed that defendant would only be convicted of unlawful imprisonment, that defendant did not really understand that fifteen years to life was his “actual” exposure in the event he was convicted of Kidnapping in the First Degree and that the lawyer represented that the complaining witness would likely not testify, is unconvincing. Defendant’s concession that, at the very least, the lawyer conveyed the People’s offer to him, showed him the charges and wrote fifteen years to life next to the top charge on the indictment and additionally, his testimony that counsel never told him to reject the offer, corroborates much of the lawyer’s version of the events.

Criminal cases should be handled by lawyers who have the skills and diligence to defend the accused in every stage of the case. Here in Stephen Bilkis and Associates, we have Queens County Criminal attorneys who will defend and represent you in all stages of the case filed against you. For other matters, you can also consult our Queens County Murder lawyers now. We are here to help you, don’t take chances, call us now.

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