This Week: Hearing on Motion To Vacate Guilty Plea Due to Lawyer’s Bad Advice

In a recent blog post, I discussed the topic of ineffective assistance of counsel claims and the opportunity to vacate a conviction due to trial counsel’s representation which falls “below an objective standard of reasonableness” and, “but for counsel’s unprofessional errors, the result in the proceeding would have been different.”  Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).  This week inside a Manhattan courtroom we will conduct a hearing for a decorated, former NYPD detective who was strongly advised by his attorney to plead guilty to a crime in connection with a bid to house retired horses from the NYPD Mounted Unit.  People v. Depamphilis, Docket No. 2010 NY 019168 (NY Co.).

Prior Counsel’s Advice Was the Legal Equivalent of Driving the Defendant Into a Wall 

The sole purpose of the guilty plea according to his prior attorney was to salvage the detective’s pension amassed over decades of service; parallel NYPD charges were hanging over our client’s head and the resolution of which directly impacted the pension issue.  After a deal was made with both the NYPD and the Manhattan District Attorney’s Office to allow the defendant to plead guilty to Offering a False Instrument in the Second Degree (New York Penal Law § 175.30) in exchange for the defendant keeping his pension, the pension deal was rejected instead by then Police Commissioner Ray Kelly who determined that he had no discretion to approve the deal.  In a written decision, Commissioner Kelly claimed that the criminal guilty plea resulted in an automatic termination of the detective’s job and the forfeiture of his pension rights pursuant to Public Officers Law § 30(1)(e) because the crime to which he pleaded guilty “demonstrated willful deceit and a calculated disregard for honest dealings.”  Noting additional errors committed by the detective’s attorney during the plea process and the fact that the detective did not financially benefit from this alleged scheme, the court has already determined in an August 1, 2016 decision that the second prong of the Strickland test – prejudice – has been established due to the conclusion that “but for the bad advice of counsel [the detective] would not have plead guilty and would have gone to trial. …  It is reasonable to conclude that the defendant would have had some confidence in seeking to present [his defense] to a trier of fact.”  The hearing which starts this week will focus solely on the first prong of the Strickland test, whether prior counsel’s level of representation fell below a reasonable standard.

This motion to vacate our client’s conviction was made pursuant to New York Criminal Procedure Law § 440.10(1)(h) on the ground that his Sixth Amendment right to effective counsel was violated.  Unlike our prior blog post on ineffective assistance of counsel claims, the motion here was made after a poorly advised guilty plea instead of after a trial.  As any of the best New York criminal appeals attorneys know, counsel errors can occur at any stage of the representation of a criminal defendant – and advice to plead guilty in a case solely in order to salvage a pension should result in the pension remaining intact; however, when the guilty plea itself is determined to automatically disqualify the possibility of saving the pension, an error has occurred which renders the advice and resultant guilty plea suspect.  After all, if the defendant was made aware that the plea he was about to take would destroy any chance of accomplishing the only thing he hoped to gain with the plea what would be the point in accepting the plea?  Instead, the defendant would take his chances at trial for obvious reasons.

Prior Counsel v. Defendant: Differing Version of Events

The hearing testimony this week will focus mainly on both our client who claimed he was badly advised by his prior counsel and his former attorney – who has claimed his advice was good but the result was not.  I will be updating this blog entry at the conclusion of the hearing.  The ineffective assistance of counsel attorneys at the Law Offices of Jeffrey Lichtman have had great success in handling post-conviction motions and appeals on this ground, recently winning a motion to vacate a 27 year sentence for a client convicted of multiple counts of sexual assault.  Call us at (212) 581-1001 to discuss your case today.