Defendant Kashawn Fashaw has moved to supplement his pro se motion for an order pursuant to Criminal Procedure Law §440.10 to vacate his conviction of robbery in the first degree in violation of Penal Law §160.15(3) upon his plea of guilty. This motion is predicated on ineffective assistance of counsel. Fashaw argues that his former counsel was ineffective in two ways; first, counsel failed to conduct an adequate investigation of the Fashaw’s background in pursuit of a more favorable plea agreement. Second, his attorney incorrectly informed Fashaw that it was counsel’s decision whether to pursue an insanity defense at trial and had counsel not rejected Fashaw’s chosen defense, he would have proceeded to trial. The court reviewed the court file, previous motions and decisions, and the following papers: Notice of Motion to Vacate Conviction, Affirmation of Counsel and Exhibits A-O Affirmation in Opposition and Memorandum of Law and Exhibit 1 and 2; Supplemental Affirmation in Opposition and Exhibit 1. DECISION AND ORDER After a consideration of the relevant statutes and case law, Fashaw’s motion is granted to the extent that a hearing will be held on the issue of whether his counsel was ineffective to the extent he prevented Fashaw from pursuing an insanity defense. Procedural history On October 11, 2019, Fashaw was arrested and charged with robbery in the first degree and related charges. The next day, on October 12, 2019, Fashaw’s attorney at the time, Reginald Sharpe, requested an examination pursuant to Criminal Procedure Law (CPL) Article 730 to determine if Fashaw was fit for trial. Fashaw was evaluated on November 6, 2019, and found fit. Both parties confirmed the report. On November 14, 2019, Fashaw was indicted on seven counts. Following the indictment, the Assistant District Attorney made a recommendation of a plea to two counts of first-degree robbery, the top count in the indictment, with sixteen years’ prison and five years’ post-release supervision, to run concurrently. On October 9, 2020, a prepleading report was completed and sent to the ADA and Judge Erika Edwards. On December 1, 2020, defendant Fashaw, his attorney, and ADA Joseph Goldstein appeared before Judge Edwards. During this appearance, Fashaw told the court that he had sent documents pertaining to his case directly to the court and the ADA. Additionally, his attorney stated that he and Fashaw had been discussing a possible psychiatric defense. Finally, the ADA made a revised recommendation of a plea to two counts of first-degree robbery with twelve years’ state prison and five years’ post-release supervision. The defense counsel asked the court to consider an offer of ten years’ prison in exchange for a plea to the top count in the indictment. The court subsequently offered Fashaw a top count plea to first-degree robbery with a sentenced of eleven years with five years’ post release supervision. On December 24, 2020, Fashaw submitted a pro se motion to the court, declaring his desire to pursue a psychiatric defense. On January 4, 2021, Fashaw, represented by counsel, accepted the court’s offer of eleven years’ prison in exchange for a plea of guilty to first degree robbery. On February 9, 2021, the parties appeared before this court for sentencing. During the appearance, Fashaw expressed that he wished to take back his guilty plea from the previous month. This court appointed a new attorney to represent Fashaw. New counsel subsequently advised the court that he had discussed the plea with Fashaw and there were not grounds to ask to withdraw and vacate the plea. Fashaw ultimately did not move to take back his plea and on June 4, 2021, Fashaw was sentenced to eleven years’ state prison with five years’ post release supervision. On December 27, 2021, Fashaw filed another pro se motion with the court arguing his plea had been involuntary. On June 2, 2021, the People submitted their response to Fashaw’s motion. The court did not issue a decision at that time. On January 14, 2022, the court assigned new counsel, the Center of Appellate Litigation, to represent Fashaw on his pro se motion. On January 13, 2023, attorneys for Fashaw filed a motion to supplement Fashaw’s motion. On March 28, 2023, the People filed their response to Fashaw’s motion. On April 3, 2023, the defense filed a reply to the People’s response. On March 19, 2023, the court denied Fashaw’s motion with leave to renew, allowing the defense to refile the motion after making an attempt to secure an affidavit from defense counsel at the plea. On October 12, 2023, attorneys for Fashaw filed a revised pro se motion that addressed the court’s ruling. The revised motion is decided as follows. Conclusions of law Fashaw argues that his conviction should be set aside pursuant to C.P.L. §440.10(1)(h) because he received ineffective assistance from his former lawyer. Defendants are entitled to effective assistance of counsel under the U.S. Constitution. See U.S. Const. Amend. VI. To prove ineffective assistance under §440.10(1)(h), a defendant must show (1) that their trial lawyer’s performance fell below an objective standard of reasonableness and (2) a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 (1984). In New York, the inquiry is whether, “the attorney provided meaningful representation” based on a totality of the circumstances approach. People v. Baldi, 54 N.Y.2d 137 (1981). First, Fashaw claims that his first counsel was ineffective because he failed to adequately investigate Fashaw’s background and present mitigating evidence during plea negotiations. As both parties note, counsel submitted a pre-pleading investigation memorandum (PPI) on his behalf, but the Fashaw now argues that the report was inadequate. To demonstrate this point, Fashaw’s defense team has established an extensive and detailed record of Fashaw’s family history, early childhood, and history of mental health and substance use disorders. Certainly, Fashaw’s current defense team created a far more in depth record of his background than his prior attorney. However, as the People note, simply because appellate counsel has conducted “a more thorough investigation of defendant’s background…does not mean that defense counsel failed to provide meaningful representation in plea negotiations and failed to do any investigation.” People’s Affirmation, pg. 7. His prior attorney engaged a licensed social worker to examine his client and submitted the report to the court and ADA. Albeit in a more truncated manner, the prior report discusses Fashaw’s family’s struggles with substance abuse and domestic violence as well as Fashaw’s own substance abuse and mental health issues. Furthermore, Fashaw did not demonstrate that he was prejudiced as a result of counsel’s lack of investigation. Fashaw argues that had his attorney done a more comprehensive investigation into his background and provided additional information to the court “there is a reasonable probability that a different plea or sentence would have been offered.” Defense’s Affirmation, pg. 32. The court cannot agree. The People’s initial offer to Fashaw was a plea to two counts of first-degree robbery in exchange for a recommendation of sixteen years’ incarceration. After the attorney submitted a PPI, the People lowered their recommendation to twelve years’ incarceration. The defense asked the court to consider the minimum sentence on a plea to the charge of ten years, before the court then made the offer of eleven years, which was eventually accepted. Fashaw argues that, with additional information, “the prosecution would have been better able to understand the root causes of Kashawn’s criminal conduct and fashion a plea that acknowledged the role his unbearable trauma played in his debilitating addiction.” Id. at 50. However, there is no indication that a more detailed PPI would have changed the People’s offer. As the People discuss in their response, they made a significant reduction in their offer from sixteen to twelve years based, in part, on the PPI that was submitted to them at the time. In their response, the People “affirmatively stat[e]” that additional information about Fashaw’s background “ would not have changed the offer or recommendation.” People’s Affirmation, p. 11. There is similarly little indication that additional background information would have changed the court’s offer. Both parties agree that the minimum sentence the court could have offered Fashaw on a plea to the top count is ten years. Whether the court offer would have gone down to ten years is pure speculation. Indeed, the court’s statements surrounding its offer suggest the opposite. On January 4, 2021, Fashaw’s attorney asked the court for a second time to offer ten years. In response, the court said, “I’m not going to do it…three separate incidents, absolutely not…based on his criminal history, the two violent felonies in the past, plus three separate incidents, we talked about this on the last date, we have talked about this in the past.” Jan. 4 2021 Tr., pp. 3 l. 25 — pg. 4 l. 18. Fashaw’s prior criminal history and the nature of offense, factors the court relied on in coming up with its offer, would not have been altered by a more detailed PPI. For these reasons, the court summarily rejects Fashaw’s first ineffective assistance claim. In contrast, Fashaw’s second claim of ineffective assistance of counsel regarding the denial of his wish to pursue a psychiatric defense cannot be decided without a hearing. Fashaw claims that Sharpe incorrectly told him that it was Sharpe’s decision whether to pursue a psychiatric defense at trial and that this misinformation led Fashaw to accept a plea he would otherwise have rejected. Fashaw argues that he was consequently “denied [] his fundamental right to choose his own defense” and that his plea was therefore “unknowing and involuntary.” Defense’s Affirmation, p. 53. The People counter that this claim is procedurally barred and alternatively should be denied on the merits. The court will first address the procedural issue and then turn to the merits of the claim. The People are incorrect in their assertion that Fashaw’s claim is procedurally barred since he did not first directly appeal it. Fashaw could not have appealed the court’s denial of his pro so motion because the court never actually denied his pro se motion. During the hearing on December 1, 2020, Fashaw said on the record that he submitted documents to the court and the DA’s office. In response, the judge told Fashaw, “You cannot send me anything directly without going through your lawyer. You can’t contact the D.A’s office without going through your lawyer. You have to be careful about that. You have an attorney, let him, you know, submit whatever documents he thinks is appropriate in your case.” Dec. 1 Tr., pg. 4 l. 25 — pg. 5 l. 12. Then on December 24, 2020, Fashaw filed a pro se motion stating that he wished to pursue a psychiatric defense. On January 4, 2021, Fashaw pled guilty to first-degree robbery. There was no discussion on the record of the pro se motion at any point prior to the plea. It is the defense’s contention that during conversations with Sharpe prior to January 4, 2021, Fashaw was misinformed that it was not his decision whether to use a psychiatric defense at trial. There is no indication in the record that the court ever discussed further or made a decision regarding Fashaw’s pro se motion prior to accepting his plea. Conclusory allegations of ineffective legal assistance combined with the existing record may suffice to deny a defendant a hearing. See People v. Zeh, 22 NY3d 1144 (2014), citing People v. Satterfield, 66 NY2d 796 (1985). Where the People submit detailed proof that refutes the defendant’s statements conclusively, a court may reasonably deny the defendant’s motion without a hearing. See, CPL §440.30(4)(d); People v. Samandarov, 13 NY3d 433 (2009). CPL §440.30(4)(d)(I) provides that in considering the merits of a motion to vacate a conviction, the court may deny it without a hearing if the allegations supporting the motion are made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. The failure to present a supporting affidavit from the prior counsel or an explanation for the failure to do so has been repeatedly upheld as justifying the summary denial of a defendant’s post-conviction motion. See, e.g., People v. Wright, 27 NY3d 516 (2016); People v. Morales, 58 NY2d 1008 (1983). But where a defendant provides a viable explanation for the failure to include his attorney’s affidavit, it is an abuse of discretion for the motion court to summarily deny the defendant a hearing. See People v. Gil, 285 AD2d 7 (1st Dept 2001). In accordance with the court’s April 19, 2023, decision, Fashaw alleges that he made repeated attempts to contact his prior attorney and eventually made contact on June 20, 2023. The attorney agreed to review documents regarding the case and speak again. After multiple follow-ups were made by Fashaw via phone and email, he spoke with the attorney again on August 15, 2023. The attorney had reviewed Fashaw’s PPI and stated it was “better than he remembered.” Defense’s Affirmation, pg. 29. Fashaw claims that when he tried to discuss matters further with him, the attorney “abruptly ended the conversation, saying ‘I cannot help you.’” Id. The court finds Fashaw has made a viable explanation for his failure to include his attorney’s affidavit. The People further argue that this claim is “foreclosed by the fact that defendant plead guilty and did not go to trial.” People’s Affirmation, p. 12. The People go on to say, “Defendant is essentially arguing that, had he gone to trial, his right to present an affirmative defense would have been violated.” p. 13. However, this is a mischaracterization of Fashaw’s argument. Fashaw’s argument is that he made the decision to accept the plea and not to go to trial because of counsel’s error. There is support for Fashaw’s argument in the record. During the December 1, 2020, hearing before Judge Edwards, counsel stated to the judge: “We have been going back and forth. This is kind of unfolding as we speak. I get documents every now and then from Mr. Fashaw and I haven’t quite yet decided whether we’re going with a psychiatric defense or not.” The judge responded by stating that if counsel intended to file a notice of an affirmative defense, he was late. After this, the following exchange occurred: Counsel: We haven’t quite decided. In fact, Mr. Fashaw and I are debating among ourselves. I am not convinced. The defendant: It’s my decision to go all the way with the psychiatric defense. The court: You have to talk to your attorney about that. Dec. 1, 2020, Tr. p. 5 l. 4-10. Additionally, based on the numerous pro se motions he filed from December 24, 2020, to the present, Fashaw repeatedly expressed a desire to present a psychiatric defense at trial. Finally, there is some support in the record for the claim that Fashaw suffered from mental health issues. The day after Fashaw was arrested and charged with the present offense, counsel requested a 730 exam to determine if Fashaw was “fit” to stand trial. Although, as the People note, Fashaw was found “fit,” this finding does not necessarily preclude Fashaw from arguing that he was suffering from a mental disease or defect at the time of commission of the offense. As Fashaw correctly notes in the motion currently before the court, the Appellate Division, First Department, held that “[a] defendant retains ultimate authority to decide whether to assert an insanity defense.” 161 A.D.3d at 613. A hearing will be conducted to consider the issue of whether counsel provided ineffective assistance to the extent he refused to allow Fashaw to present an insanity defense at trial. All parties should be prepared to proceed accordingly. This shall constitute the decision and order of the court. Dated: November 29, 2023
