My question involves criminal law for the state of: New York
I hope this isn't too long, and I thank those who take the time to read it. Its just wrong what happened to me, specially when the whole thing had nothing to do with anything i had done, but because of some administrative mistake made somewhere. again, thank you.
In July of 2013, I was stopped and ticketed for speed in zone and charged with aggravated unlicensed operation I was arraigned and released on my own recognizance. I met income criteria and was assigned a member of the Clinton Count Bar [Lawyer]. I made several attempts to reach [Lawyer] prior to my initial appearance but was unsuccessful.
We met at Town of Peru Court and I discussed my situation with him. I explained the suspension was as administrative oversight; my license should not have been suspended, that Child Support Enforcement Unit (herein after “CSEU”) has done this to me before. Not only was the suspension unwarranted and unauthorized by law, but that I had no notice of their intention to do so, or that they had. Either something was done wrong, or the proper protocol or policy is not in place to deal with these situations (particulars irrelevant here). I was unequivocal in my desire for trial if the ADA was not cooperative with a dismissal or similarly situated.
We departed with the understanding I was to retrieve proof of my license suspension being lifted and That the suspension should not have happened from CSEU, while he was to research the statutes and pertinent regulations on the matter, as well as the criminal elements, e.g., the criminal elements of aggravated unlicensed operation, which require a defendant “know” or “have reason to believe” or “should have known” that his license was suspended.
When we returned to Court, his opening statement “sorry, not a lot of time we are up next” is followed by “ I just got this from the ADA” referring to the formal plea bargain he hands me. I reviewed the plea and handed him what I got. While not the smoking gun, it was the suspension removal and as close as your going to get to an indirect admission of fault. I inquired about what he had found and I cannot recall his response, but it was an excuse and he had done nothing. I pled with him, that I was wronged and needed his help. He said he would research our position properly, and would speak with the ADA about the case and show him the paper I obtained from CSEU. I was clear; I was leaning towards trial if he was not able to resolve the matter. While not a 100% certainty I would win based on the merits, my fear at this point is not the case against me but of my own counsel defending me on a whim and a coffee napkin! If I can secure a favorable plea, I have to weight it.
My next appearance was the same. He had done nothing. How can you advise a client to take a plea, when you cannot answer the questions of law you yourself determined needed to be answered? So not only did he advise me to make a plea without determining if in fact it was advisable, Mr. [Lawyer] went a step further in his professional ethical violation The initial plea (we will forget the speeding) asked for a plea to the charge and 30 days, and a fine on the speeding ticket. The plea was not acceptable, not because of the jail time. See, I came to court in custody. I was already in jail. The time was offered concurrently. The problem was on principle and fairness. I was not guilty, and did not want a misdemeanor conviction. Mr. [Lawyer] returned to the ADA and came back with an offer of the unlicensed operation, a violation, with fines and surcharges set by the court. This would mean two sets of fines and surcharges.
Again, I am in custody. I told Mr. [Lawyer] the plea is acceptable but the fines are not. I am indigent and now in custody. I will be returned to custody for nonpayment of the surcharges and have my license suspended for nonpayment of the fines. I am willing to do the jail time initially offered. The ADA refused, and at this point I told Mr. [Lawyer] I did not want the deal. Mr. [Lawyer] said he could ask the judge for civil judgments. I said “ o, right, ok, that will take care of the driver license and fines thing, its civil they wont suspend me or come after me for not paying the court fees?”, Mr. [Lawyer] replies “right, yes … I got to get back in there and talk to him about this, let me see”. This is, of course, not exact, and slightly paraphrased. But the direct question and the direct affirmative answer is given. I took the deal. Given this information, context and set of circumstances, I believe a reasonable person would have made this decision, and this decision was made as a direct consequence of the actions, advice and behavior of counsel.
In October, I accessed my driving privilege information online and found I had license suspensions from the village of Peru. Figuring this was an oversight regarding a failure to answer a summons in the matter, I wrote the Peru Court and notified them of the error. I also called and left messaged twice. I started to Call Mr. [Lawyer] Office. Left a message, than another, than another. I explained the situation in my message. Tried calling him here and there for two weeks. On November 4th, 2014, I called Mr. [Lawyer] using a smart phone application which allows you to enter any caller ID you wish. I called him from my number and received no answer. I waited approx. 10min. than called him from a number I know he uses on a daily basis, and he answered. Weeks of messages and unanswered calls finally realized. The call was dropped, but after I called back five times in a row he answered again.
I told Mr. [Lawyer] that I had contacted the court and that my license was suspended; that it was my understanding that my license would not be suspended, nor would I be arrested for not paying fines, wasn’t that your understanding? Mr. [Lawyer] answered YES. Mr. [Lawyer] was confused, and I admit in intentionally adding to that confusing to gauge his responses, as to what I was calling him about, as he initially believed I was calling because him to discuss my case because my license is suspended and it shouldn’t be, asking me what the Court had to say about it while I’m trying to ascertain whether he flat out lied to me about the civil judgments and license suspensions or just said it not knowing one way or another. Than he thought I was telling him the Court said It would not talk to me about the matter because I was represented by counsel and he went on about how he wasn’t my lawyer anymore, and to just tell the Court that, and for them to give him a call. I told Mr. [Lawyer] I disagreed.
If my direct and collateral consequences are significantly different than what I bargained for, than I believe we must have some avenue to address this. Mr. [Lawyer] told me to speak the Court and than get back to him. I immediately called the Court, did speak with Holly, who had Judge Kirby call me the following week November 18, 2014. Judge Kirby told me my license is suspended, civil judgments do not protect you from license suspensions for nonpayment of fines, and if in fact my attorney told my otherwise I had been misinformed. To clear my license, the Court needs $710.00, money which is nowhere in my future. I called Mr. [Lawyer] that same day and received no answer. I called him again the next day, Wednesday, November 19th, 2014.I left a detailed message, which was not confrontational or accusatory. I was asking for his help, if there was anything at all he could do to at least get the fine cut down, or reinstated to avoid suspension fees. I have not heard from him.
I wanted trial. Given what I have said is true, I had a likelihood of success, depending on the effort of preparation put forth by myself and my trained, educated, licensed attorney, who is ethically bound to advise me of my best course of action after having properly weighed the facts and the law. I’m arguing I was essentially coerced into a plea bargain situation, one that did not end favorably to me even if a civil judgment allows more time to settle the consequences. But even that would be acceptable. I was at best misled or misinformed at worst lied to, about the consequences of my plea. I believe I was told my license would not be suspended if a civil judgment were entered so I would take the plea and go away. A reasonable person would not turn down jail time for a fine and surcharges and a license suspension if that person was already in jail and that jail time would run at the same time. His reluctance to speak with me or make any effort what so ever to resolve the matter with me is another ethical violation in and of itself.
Thank you for reading. I would appreciate any help, suggestions you have and also ask if anything seems unclear or is hard to follow please let me know.I am filing a complaint with the Bar, but wanted input from you guys first. Can I sue? Can I get back in front of the Judge and fix it somehow? What can I do?
Thank you!
I hope this isn't too long, and I thank those who take the time to read it. Its just wrong what happened to me, specially when the whole thing had nothing to do with anything i had done, but because of some administrative mistake made somewhere. again, thank you.
In July of 2013, I was stopped and ticketed for speed in zone and charged with aggravated unlicensed operation I was arraigned and released on my own recognizance. I met income criteria and was assigned a member of the Clinton Count Bar [Lawyer]. I made several attempts to reach [Lawyer] prior to my initial appearance but was unsuccessful.
We met at Town of Peru Court and I discussed my situation with him. I explained the suspension was as administrative oversight; my license should not have been suspended, that Child Support Enforcement Unit (herein after “CSEU”) has done this to me before. Not only was the suspension unwarranted and unauthorized by law, but that I had no notice of their intention to do so, or that they had. Either something was done wrong, or the proper protocol or policy is not in place to deal with these situations (particulars irrelevant here). I was unequivocal in my desire for trial if the ADA was not cooperative with a dismissal or similarly situated.
We departed with the understanding I was to retrieve proof of my license suspension being lifted and That the suspension should not have happened from CSEU, while he was to research the statutes and pertinent regulations on the matter, as well as the criminal elements, e.g., the criminal elements of aggravated unlicensed operation, which require a defendant “know” or “have reason to believe” or “should have known” that his license was suspended.
When we returned to Court, his opening statement “sorry, not a lot of time we are up next” is followed by “ I just got this from the ADA” referring to the formal plea bargain he hands me. I reviewed the plea and handed him what I got. While not the smoking gun, it was the suspension removal and as close as your going to get to an indirect admission of fault. I inquired about what he had found and I cannot recall his response, but it was an excuse and he had done nothing. I pled with him, that I was wronged and needed his help. He said he would research our position properly, and would speak with the ADA about the case and show him the paper I obtained from CSEU. I was clear; I was leaning towards trial if he was not able to resolve the matter. While not a 100% certainty I would win based on the merits, my fear at this point is not the case against me but of my own counsel defending me on a whim and a coffee napkin! If I can secure a favorable plea, I have to weight it.
My next appearance was the same. He had done nothing. How can you advise a client to take a plea, when you cannot answer the questions of law you yourself determined needed to be answered? So not only did he advise me to make a plea without determining if in fact it was advisable, Mr. [Lawyer] went a step further in his professional ethical violation The initial plea (we will forget the speeding) asked for a plea to the charge and 30 days, and a fine on the speeding ticket. The plea was not acceptable, not because of the jail time. See, I came to court in custody. I was already in jail. The time was offered concurrently. The problem was on principle and fairness. I was not guilty, and did not want a misdemeanor conviction. Mr. [Lawyer] returned to the ADA and came back with an offer of the unlicensed operation, a violation, with fines and surcharges set by the court. This would mean two sets of fines and surcharges.
Again, I am in custody. I told Mr. [Lawyer] the plea is acceptable but the fines are not. I am indigent and now in custody. I will be returned to custody for nonpayment of the surcharges and have my license suspended for nonpayment of the fines. I am willing to do the jail time initially offered. The ADA refused, and at this point I told Mr. [Lawyer] I did not want the deal. Mr. [Lawyer] said he could ask the judge for civil judgments. I said “ o, right, ok, that will take care of the driver license and fines thing, its civil they wont suspend me or come after me for not paying the court fees?”, Mr. [Lawyer] replies “right, yes … I got to get back in there and talk to him about this, let me see”. This is, of course, not exact, and slightly paraphrased. But the direct question and the direct affirmative answer is given. I took the deal. Given this information, context and set of circumstances, I believe a reasonable person would have made this decision, and this decision was made as a direct consequence of the actions, advice and behavior of counsel.
In October, I accessed my driving privilege information online and found I had license suspensions from the village of Peru. Figuring this was an oversight regarding a failure to answer a summons in the matter, I wrote the Peru Court and notified them of the error. I also called and left messaged twice. I started to Call Mr. [Lawyer] Office. Left a message, than another, than another. I explained the situation in my message. Tried calling him here and there for two weeks. On November 4th, 2014, I called Mr. [Lawyer] using a smart phone application which allows you to enter any caller ID you wish. I called him from my number and received no answer. I waited approx. 10min. than called him from a number I know he uses on a daily basis, and he answered. Weeks of messages and unanswered calls finally realized. The call was dropped, but after I called back five times in a row he answered again.
I told Mr. [Lawyer] that I had contacted the court and that my license was suspended; that it was my understanding that my license would not be suspended, nor would I be arrested for not paying fines, wasn’t that your understanding? Mr. [Lawyer] answered YES. Mr. [Lawyer] was confused, and I admit in intentionally adding to that confusing to gauge his responses, as to what I was calling him about, as he initially believed I was calling because him to discuss my case because my license is suspended and it shouldn’t be, asking me what the Court had to say about it while I’m trying to ascertain whether he flat out lied to me about the civil judgments and license suspensions or just said it not knowing one way or another. Than he thought I was telling him the Court said It would not talk to me about the matter because I was represented by counsel and he went on about how he wasn’t my lawyer anymore, and to just tell the Court that, and for them to give him a call. I told Mr. [Lawyer] I disagreed.
If my direct and collateral consequences are significantly different than what I bargained for, than I believe we must have some avenue to address this. Mr. [Lawyer] told me to speak the Court and than get back to him. I immediately called the Court, did speak with Holly, who had Judge Kirby call me the following week November 18, 2014. Judge Kirby told me my license is suspended, civil judgments do not protect you from license suspensions for nonpayment of fines, and if in fact my attorney told my otherwise I had been misinformed. To clear my license, the Court needs $710.00, money which is nowhere in my future. I called Mr. [Lawyer] that same day and received no answer. I called him again the next day, Wednesday, November 19th, 2014.I left a detailed message, which was not confrontational or accusatory. I was asking for his help, if there was anything at all he could do to at least get the fine cut down, or reinstated to avoid suspension fees. I have not heard from him.
I wanted trial. Given what I have said is true, I had a likelihood of success, depending on the effort of preparation put forth by myself and my trained, educated, licensed attorney, who is ethically bound to advise me of my best course of action after having properly weighed the facts and the law. I’m arguing I was essentially coerced into a plea bargain situation, one that did not end favorably to me even if a civil judgment allows more time to settle the consequences. But even that would be acceptable. I was at best misled or misinformed at worst lied to, about the consequences of my plea. I believe I was told my license would not be suspended if a civil judgment were entered so I would take the plea and go away. A reasonable person would not turn down jail time for a fine and surcharges and a license suspension if that person was already in jail and that jail time would run at the same time. His reluctance to speak with me or make any effort what so ever to resolve the matter with me is another ethical violation in and of itself.
Thank you for reading. I would appreciate any help, suggestions you have and also ask if anything seems unclear or is hard to follow please let me know.I am filing a complaint with the Bar, but wanted input from you guys first. Can I sue? Can I get back in front of the Judge and fix it somehow? What can I do?
Thank you!
Post-Conviction Relief: Setting Aside a Plea Bargain Based on Misinformation From the Defense Lawyer
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