This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 160 

The People &c.,

 Respondent,

 v.

Herman Bank, 

 Appellant.

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No. 161 

The People &c.,

 Respondent,

 v.

Herman H. Bank, 

 Appellant.

Case No. 160:

Robert N. Isseks, for appellant.

Leah R. Mervine, for respondent.

Case No. 161:

Timothy Davis, for appellant.

Leah R. Mervine, for respondent.

PIGOTT, J.:

On May 27, 2007, defendant, who was operating his car

while under the influence of cocaine, drove the wrong way on

Interstate 590 in Monroe County. He collided with another

vehicle at highway speed, killing two of the occupants and

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seriously injuring a third. 

Defendant was charged with multiple criminal counts,

including two counts of manslaughter in the second degree (Penal

Law § 125.15 [1]) and vehicular manslaughter in the first degree

(Penal Law § 125.13 [4]). He pleaded not guilty and the case

proceeded to a bench trial on December 9, 2008. 

At trial, the People presented the testimony of three

eyewitnesses who observed defendant's vehicle traveling the wrong

way on the interstate shortly before the accident. They also

presented several witnesses who testified to the aftermath of the

crash. One of the paramedics who arrived on the scene testified

that defendant, who was trapped in his vehicle, appeared "calm

and glassy eyed." Defendant repeatedly asked how many cars he

hit, and angrily stated that his girlfriend was "on a date with

another guy." Prior to being extracted from the vehicle, the

paramedic administered morphine to the defendant. 

A responding state trooper testified that he found two

bottles of prescription pills in defendant's vehicle. The

Trooper went to the hospital after defendant was transported

there, and based on his observations, asked defendant to submit

to a chemical test. At first, defendant stated: "I don't think

I can do that. I made a mistake earlier in Buffalo. I was with

a hooker. She blew cocaine smoke in my mouth. . . That will show

up." The Trooper then obtained a court order for a blood draw,

which revealed the presence of cocaine in defendant's system but

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none of the prescription drugs that were found in the vehicle. 

The People also presented the testimony of a toxicologist, who

opined that defendant "was under the influence of cocaine at the

time of the accident" and "would have been unable to safely

operate a vehicle."

Defendant asserted the affirmative defense that he was

suffering from a mental disease or defect that rendered him not

legally responsible. His counsel supported that theory by

calling a clinical pharmacist, who opined that defendant "in the

condition that he was in on that evening, lacked adequate insight

and judgment as to the consequences of his actions." The expert

explained defendant's history of bipolar disorder and stated that

before the crash, he was not taking his prescription medication,

resulting in mania. She also testified that the prescription

drug defendant was taking predisposes someone to entering a manic

or hypomanic phase, if not prescribed with a mood stabilizer. 

The expert disagreed with, and challenged the finding of the

People's experts who had performed an extrapolation to determine

the level of cocaine in defendant's blood at the time of the

crash. Finally, she discussed how the morphine that was

administered to defendant at the scene of the crash could have

had negative effects on the voluntariness and accuracy of his

post-accident statements.

In rebuttal, the People called a physician who opined

that defendant was not hypomanic at the time of the crash and

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that even if he was, he would have understood the nature and

consequences of his actions. In addition to the physician, the

People also called a forensic psychologist, who testified that

defendant's actions prior to and after the accident were

consistent with drug intoxication and not his proffered defense. 

In sur-rebuttal, defense counsel challenged the methodology of

the People's forensic psychologist with his own expert. 

Following deliberations, the court found defendant

guilty on all counts of the indictment. At sentencing, the court

noted that it was "limited in what sentence can be imposed as a

message not only to [defendant], but to the community. I think

it does call for the maximum, more than the maximum." He then

sentenced defendant to an aggregate indeterminate term of

incarceration of 5 to 15 years. 

On direct appeal, the Appellate Division affirmed the

judgment of conviction and sentence, rejecting defendant's

argument that defense counsel's choice to present his defense

through a pharmacological expert rather than a psychological or

psychiatric expert deprived him of meaningful representation (129

AD3d 1445 [4th Dept 2015]). 

I.

Some four years later and after the death of both his

attorney1 and the original judge, defendant filed a motion

pursuant to CPL 440.10 seeking to vacate the judgment of

1 Defense counsel died in August 2010.

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conviction on the ground that he had received ineffective

assistance of counsel in the pretrial stages of the proceedings

against him. Specifically, he argued that his attorney was

constitutionally deficient because he mistakenly believed that

defendant's potential sentences on each count were statutorily

required to run consecutively. He further alleged that his

attorney did not engage in plea negotiations, and therefore no

plea offer was conveyed to him as a result of counsel's erroneous

advice. 

During a hearing on the motion, defendant averred that

his attorney advised him that he faced consecutive sentences with

an aggregate maximum term of 11 1/2 to 34 years. Relying on the

attorneys' incorrect advice, defendant did not believe that a

negotiated plea was worth pursuing and his attorney never engaged

in plea negotiations on his behalf. Instead, defense counsel

told the prosecutor that defendant was not interested in entering

into plea negotiations. 

In response, the People called the Assistant District

Attorney who had been responsible for the case the year before it

went to trial. Her testimony was that the case involved "a very

horrific crash" and did not warrant a plea bargain. She

testified that she had "made clear" to defendant's attorney that

she would not be making any plea offers, and further, that even

if she felt an offer was appropriate, "given the magnitude of the

case," she would have still needed the consent of the District

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Attorney of Monroe County to any reduction from the maximum.

County Court denied defendant's motion and the

Appellate Division unanimously affirmed (124 AD3d 1376 [4th Dept

2015]). The court held that while defendant established that

defense counsel incorrectly advised him during plea negotiations

that he was facing consecutive sentences after conviction, he

failed to establish that he was deprived of the possibility of a

plea bargain acceptable to him as the result of that error (id.

at 1378). A Judge of this Court granted defendant leave to

appeal from that order and from the order affirming the judgment.

Defendant's sole argument with respect to the CPL 440

motion is that his attorney was constitutionally ineffective for

incorrectly advising him, at the pretrial stage, that his

sentences were statutorily required to run consecutively. He

contends that the record demonstrates a "reasonable probability"

that this incorrect advice "affected the outcome of the

proceedings" and that he was denied "meaningful representation"

based "on the unfitness of the process as a whole." 

It is well settled that a defendant is entitled to the

effective assistance of competent counsel at the plea

negotiations stage (see Padilla v Kentucky, 559 US 356, 364

[2010]). A defendant, however, has no constitutional right to a

plea bargain (see Lafler v Cooper, 132 S Ct 1376, 1395 [2012];

People v Adams, 20 NY3d 608, 613 [2013]). In New York, the

standard for an ineffective assistance of counsel claim is

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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]). 

Here, the Appellate Division found, and the record

supports the determination, that defendant's attorney incorrectly

advised him that he was subject to mandatory consecutive

sentences. There is no dispute that counsel's advice to

defendant was incorrect: consecutive sentences were not mandatory

nor even an option (see CPL 70.25 [2]). 

However, defendant was required to show more than

incorrect advice by defense counsel. Here, the record supports

the Appellate Division's determination that there was no

possibility that a reduced plea would have been offered to

defendant. Therefore, the incorrect advice could not have

affected the outcome of the proceedings. The People entertained

no plea possibility or any reduction in the sentence given, among

other things, the maximum sentence defendant faced for killing

two adults and injuring a third was an aggregate term of just 5

to 15 years. Nor was there any proof that the court would have

extended an offer to a reduced sentence. Rather, the sentencing

court remarked that it did not think the maximum sentence was

enough punishment for defendant under the circumstances of this

case. 

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We have considered defendant's remaining arguments on

his motion and find them to be lacking in merit. 

II.

With respect to the direct appeal, defendant argues

that his attorney's reliance on the expert testimony of a

clinical pharmacist, as opposed to a forensic psychiatrist,

amounted to ineffective assistance of counsel. But defendant, a

pharmacist himself, and his attorney pursued a reasonable trial

strategy by attempting to demonstrate the effect of the

medications on defendant's mental health. The expert supported

the defense's theory that defendant was in a state of mania as a

result of the combination of his bipolar medication and a new

prescription, and she testified in great detail as to how these

drug interactions could have rendered defendant incapable of

understanding the consequences of his actions. We cannot

question, in hindsight, what appears to have been a reasonable

strategy of placing before the trier of fact testimony as to how

defendant's medication altered his mental state. Defendant's

claim that defense counsel should have put on a different expert,

or that one even exists, is purely conjectural. 

Accordingly, each of the Appellate Division orders

should be affirmed.

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* * * * * * * * * * * * * * * * *

For Each Case: Order affirmed. Opinion by Judge Pigott. Chief

Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and

Garcia concur.

Decided November 1, 2016

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