People v. Herman Bank, People v. Herman H. Bank

Decided On : 11/1/2016
Issue before the Court:  Defendant’s attorney erroneously informed defendant that consecutive sentences were mandated, when in fact consecutive sentences for the deaths of two individuals in the vehicular manslaughter case could not be imposed.  Believing that the prosecution would never come down to a reasonable sentence from the 10-to-30 maximum term and being told that he would not get offered less than 6-to-18 years, the defendant did not engage in plea negotiations.  After being convicted at trial and sentenced to the actual maximum term of 5-to-15 years, defendant filed a C.P.L. § 440.10 motion alleged ineffective assistance.  Defendant would have taken a plea to a 4-to-12 year term had that been offered.
Held:  No IAC because the prosecutor insisted that she would not have made any plea offer.  Even under New York’s “meaningful representation” standard, the Court found that defendant failed because “the prejudice component” of an IAC claim, while “not necessarily indispensable,” was not established.
CAL Observes: Trying to recreate the past to decide what would have happened had counsel not been ineffective is always a bit of a fool’s errand.  The Court of Appeals has repeatedly announced that it need not engage in such tomfoolery because it employs the more defendant friendly “meaningful representation” standard.  Yet again, though, the Court shows that what it means by “meaningful representation” is really nothing different than prejudice.  Finding “no possibility” that the prosecution would have offered a lower sentence and no “proof that the court would have extended an offer to a reduced sentence,” the Court essentially employed the Stickland standard and nothing more.  True “meaningful representation” would require counsel to know his client’s sentencing exposure and to put forth facts and arguments to negotiate for a sentence less than the maximum regardless of the expected outcome.  With 99% of case being plea bargained, can there ever be a case where no amount of effort by an attorney would offer the possibility of a sentence other than the maximum allowable term?  The prosecution’s post-hoc rationalization otherwise would not appear to be incontrovertible proof.
People v. Herman Bank:
AD4 order dated June 12, 2015, modifying judgment of conviction.  Decision below: 129 A.D.3d 1445, 12 NYS3d 673.  Lippman, Ch. J., granted leave August 13, 2015. 
ISSUE PRESENTED: Whether trial counsel provided IAC by (a) raising a hopeless mental-disease-or-defect defense, and then (b) relying on a pharmacological expert witness rather than a psychologist or psychiatrist.  (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)
People v. Herman H. Bank:
AD4 order dated January 2, 2015, affirming judgment of conviction.  Decision below: 124 AD3d 1376, 1 NYS3d 687.  Lippman, Ch. J., granted leave June 22, 2015.  
ISSUE PRESENTED: Whether defendant was deprived of the effective assistance of counsel at the plea negotiations, where counsel misunderstood the law regarding concurrent versus consecutive sentencing and gave incorrect legal advice.

Related Information:
People v. Bank