ineffective assistance of counsel claim in New York

2023"A defendant advancing an ineffective assistance of counsel claim must 'demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings' " ( People v Hogan , 26 NY3d 779, 785 [2016]; see People v Benevento , 91 NY2d 708, 712 [1998]; People v Rivera , 71 NY2d 705, 709 [1988]).

2018As pertinent here, "a simple disagreement with strategies [or] tactics . . ., weighed long after the trial, does not suffice" for a defendant to prevail on an ineffective assistance of counsel claim ( People v Flores , 84 NY2d 184, 187 [1994]; accord People v Benevento , 91 NY2d 708, 713 [1998]).

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2025"In New York, the standard for an ineffective assistance of counsel claim is whether the defendant was afforded 'meaningful representation' and, while significant, the prejudice component of an ineffective assistance claim is not necessarily indispensable" ( People v Bank , 28 NY3d 131, 137 [2016]; see People v Baldi , 54 NY2d 137, 147 [1981]; People v Oliver , 162 AD3d 1722 , 1723 [4th Dept 2018]).

2016It is well settled that, where a defendant raises an ineffective assistance of counsel challenge, “[s]o long as the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d 137, 147 [1981]).

2023"A defendant advancing an ineffective assistance of counsel claim must 'demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings' " ( People v Hogan , 26 NY3d 779, 785 [2016]; see People v Benevento , 91 NY2d 708, 712 [1998]; People v Rivera , 71 NY2d 705, 709 [1988]).

2016To the extent that defendant asserts an ineffective assistance of counsel claim on the ground that defense counsel could have sought certain jury charges, that claim involves matters outside the record on appeal in this case and thus is properly raised by way of a motion pursuant to CPL article 440 (see generally People v Rivera, 71 NY2d 705, 709 [1988]).

2026Where, as here, an ineffective assistance of counsel claim is based on a single error, that error must be so "egregious and prejudicial as to compromise a defendant's right to a fair trial" ( People v Caban , 5 NY3d 143, 152 [2005]; see People v Hayward , 42 NY3d 753 , 755 [2024]), and it must be evident that the conduct "could not have been grounded in a legitimate trial strategy" ( People v McGee , 20 NY3d 513, 518 [2013]; accord People v Watkins , 42 NY3d 635, 640 [2024], cert denied ___ US ___, 145 S Ct 459 [2024]).

2014In evaluating an ineffective assistance of counsel claim, the courts look to the fairness of the proceedings as a whole, or whether the defendant received meaningful representation (see People v Heidgen, 22 NY3d 259, 278 [2013]; People v Caban, 5 NY3d 143, 156 [2005]). “[A] defendant’s showing of prejudice [is] a significant but not indispensable element” in determining whether the standard of meaningful representation was achieved (People v Stultz, 2 NY3d 277, 284 [2004]; see People v Heidgen, 22 NY3d at 278-279 ; People v Benevento, 91 NY2d 708, 714 [1998]).

2022Inasmuch as defendant raises an ineffective assistance of counsel challenge under both the Federal and New York State Constitutions, "the claim is properly evaluated using the state standard" ( People v Oliver [appeal No. 2], 162 AD3d 1722 , 1723 [4th Dept 2018]; see People v Stultz , 2 NY3d 277, 282-284 [2004], rearg denied 3 NY3d 702 [2004]; Conway , 148 AD3d at 1741 ).

2020Defense counsel's failure to move for a trial order of dismissal and for sanctions based upon a purported Brady violation did not render his assistance ineffective because an ineffective assistance of counsel claim cannot be premised upon a failure to make motions that have little or no chance of success ( see People v Stultz , 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).

2018As pertinent here, "a simple disagreement with strategies [or] tactics . . ., weighed long after the trial, does not suffice" for a defendant to prevail on an ineffective assistance of counsel claim ( People v Flores , 84 NY2d 184, 187 [1994]; accord People v Benevento , 91 NY2d 708, 713 [1998]).

2010While a defendant need not show actual prejudice to make out an ineffective assistance of counsel claim, he or she must show that “the attorney’s conduct constituted ‘ “egregious and prejudicial” ’ error such that defendant did not receive a fair trial” (People v Benevento, 91 NY2d 708, 713 [1998], quoting People v Flores, 84 NY2d 184, 188 [1994]).

2020Thus, to prevail on an ineffective assistance of counsel claim based on his attorney's advice regarding such consequences, defendant must show (1) that his attorney made an affirmative misstatement regarding the immigration consequences of defendant's plea and (2) that there was a reasonable probability that defendant would not have pleaded guilty but for that misadvice ( see People v McDonald , 1 NY3d 109, 114-115 [2003]).

2016In a case that was decided seven years prior to Padilla , the New York Court of Appeals recognized that, under certain circumstances, an attorney’s affirmative misrepresentation as to the immigration consequences of a guilty plea can support an ineffective assistance of counsel claim (People v McDonald, 1 NY3d 109 [2003]).

2024In order to establish an ineffective assistance of counsel claim under the Sixth Amendment to the United States Constitution, a defendant must demonstrate that trial counsel "committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution," and that the deficient performance "actually prejudiced the defendant" ( People v Gross , 26 NY3d 689, 693 ; see Strickland v Washington , 466 US 668, 688, 694 ).

2023“On an ineffective assistance of counsel claim under the Sixth Amendment to the United States Constitution, a defendant must demonstrate that (1) his or her attorney committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution, and (2) that counsel’s deficient performance actually prejudiced the defendant” (People v Gross, 26 NY3d 689, 693 [2016]).

2002Effective assistance is “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Longtin, 92 NY2d 640, 644 [1998], citing People v Ortiz, 76 NY2d 652, 656 [1990]). *210 To prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate the existence of a potential conflict of interest (see People v Ortiz, 76 NY2d 652, 656-657 [1990]).

2002Effective assistance is “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Longtin, 92 NY2d 640, 644 [1998], citing People v Ortiz, 76 NY2d 652, 656 [1990]). *210 To prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate the existence of a potential conflict of interest (see People v Ortiz, 76 NY2d 652, 656-657 [1990]).

2017Defendant was not deprived of the effective assistance of counsel. * To prevail on an ineffective assistance of counsel claim under the NY Constitution, a defendant bears the burden of establishing that defense counsel deprived him or her of a fair trial by providing less than meaningful representation (see People v Heidgen, 22 NY3d 259, 278 [2013]; People v Thomas, 105 AD3d 1068, 1071 [2013], lv denied 21 NY3d 1010 [2013]).

2017To prevail on an ineffective assistance of counsel claim under the NY Constitution, a defendant bears the burden of establishing that defense counsel deprived him or her of a fair trial by providing less than meaningful representation (see People v Heidgen, 22 NY3d 259, 278 [2013]; People v Gokey, 134 AD3d 1246, 1246-1247 [2015], lv denied 27 NY3d 1069 [2016]).

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2024In a case such as this, where "an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts" ( id .; see People v Wright , 27 NY3d 516, 520-521 [2016]; People v Sanchez , 21 NY3d 216, 223 [2013]).

2023Where, as here, an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts ( see People v Wright , 27 NY3d 516, 520-521 [2016]; People v Sanchez , 21 NY3d at 223 ).

2020Thus, although there may be some cases in which the trial record is sufficient to permit a defendant to bring an ineffective assistance of counsel claim on direct appeal (see People v Nesbitt, 20 NY3d 1080, 1081-1082 [2013]), “in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10” (Brown, 45 NY2d at 853-854 ; see also Campbell, 30 NY3d at 942-943 ).

2016The ineffective assistance of counsel claim that defendant presents to this Court is of the type where “it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10” (People v Brown, 45 NY2d 852, 854 [1978]).

2022"In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v Nicelli , 121 AD3d

2020"In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him, and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v Nicelli , 121 AD3d 1129, 11

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2025To prevail on an ineffective assistance of counsel claim "[i]n the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial' " ( People v Hernandez , 22 NY3d 972, 975 [2013], cert denied 572 US 1070 [2014], quoting Hill v Lockhart , 474 US 52, 59 [1985]; see generally Strickland v Washington , 466 US 668, 694-695 [1984]).

2016In New York, the standard for an ineffective assistance of counsel claim is whether the defendant was afforded “meaningful representation” and, while significant, the prejudice component of an ineffective assistance claim is not necessarily indispensable (People v Henry, 95 NY2d 563, 565 [2000]; see People v Stultz, 2 NY3d 277, 284 [2004]; People v Benevento, 91 NY2d 708, 712 [1998]).

2014Success of an ineffective assistance of counsel claim under article I, § 6 of the New York State Constitution rests on whether “ ‘the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’ ” (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 146-147 [1981]; see also People v Lane, 60 NY2d 748, 750 [1983]).

2025A court may deny CPL 440.10 motion without a hearing if "the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts" (CPL 440.30 [4] [b]; see Delorbe , 35 NY3d at 121; People v Satterfield , 66 NY2d 796, 799 [1985]).

1989Thus, we cannot conclude that defendant has raised factual issues concerning counsel’s failure to pursue this defense strategy which would merit a hearing on the ineffective assistance of counsel claim (see, People v Satterfield, supra, at 799).

2024In a case such as this, where "an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts" ( id .; see People v Wright , 27 NY3d 516, 520-521 [2016]; People v Sanchez , 21 NY3d 216, 223 [2013]).

2023Where, as here, an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts ( see People v Wright , 27 NY3d 516, 520-521 [2016]; People v Sanchez , 21 NY3d at 223 ).

2022"In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v Nicelli , 121 AD3d

2020"In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him, and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v Nicelli , 121 AD3d 1129, 11

2019To make out "an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer," a defendant must show "that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" [*2]( People v Nicelli , 121 AD3d 1129, 1129-1130 [2014], lv

2019"In order to prevail on an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer, the defendant has the burden of establishing that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that defendant would have accepted the offer had counsel adequately communicated it to him or her, and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v Brett W. , 144 AD3d 1314

2016(People v Ford, 86 NY2d 397 [1995].) However, in 2010, the United States Supreme Court held that the failure to advise a client of the deportation consequences of a guilty plea could support an ineffective assistance of counsel claim (Padilla v Kentucky, 559 US 356 [2010]).

2010The Court of Appeals had previously held that deportation was a collateral consequence, and therefore, the failure of a defendant’s attorney to warn him or her of the possibility of deportation as a result of a guilty plea was not grounds for an ineffective assistance of counsel claim (People v Ford, 86 NY2d 397, 405 [1995]; see also People v Gravino, 14 NY3d 546, 559-560 [2010, Ciparick, J., dissenting]).

2015However, defendant’s distinct claim that counsel affirmatively misinformed her about the plea’s deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel’s affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim (see People v McDonald, 1 NY3d 109, 111 [2003]; People v Llibre, 125 AD3d 422, 423 [2015], lv granted 24 NY3d 1121 [2015]; People v Mel

2013Defendant’s aunt acknowledged, however, that Ehrlich’s use of the phrase “most likely” necessarily meant that deportation remained a “possibility.” To our analysis, the fact that Ehrlich “may have expressed his experience-based assessment of the likelihood that removal proceedings might or might not be initiated . . . was not misleading,” and the record as a whole falls short of establishing that Ehrlich’s “advice was deficient so as to satisfy the first prong of an ineffective assistance of counsel claim” (People v Glasgow, 95 AD3d at 1369).

2016In any event, assuming that defendant met the first prong of the federal standard for determining an ineffective assistance of counsel claim under Strickland v Washington ( 466 US 668, 687-688 [1984]), that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, defendant failed to meet the second prong, i.e., that he was prejudiced (see People v Hernandez, 22 NY3d 972, 974-975 [2013]; People v Picea, 97 AD3d 170 , 176-180 [2012]).

2016In any event, assuming that defendant met the first prong of the federal standard for determining an ineffective assistance of counsel claim under Strickland v Washington ( 466 US 668, 687-688 [1984]), that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, defendant failed to meet the second prong, i.e., that he was prejudiced ( see People v Hernandez , 22 NY3d 972 , 974-975 [2013]; People v Picca , 97 AD3d 170 , 176-180 [2012]).