People v. Tiger
| Decision Date | 13 July 2022 |
| Docket Number | 2021-00477,Ind. No. 215/12 |
| Citation | 207 A.D.3d 574,171 N.Y.S.3d 169 |
| Parties | The PEOPLE, etc., respondent, v. Natascha TIGER, appellant. |
| Court | New York Supreme Court — Appellate Division |
Larkin Ingrassia, LLP, Newburgh, NY (John Ingrassia and Brittany A. Kessler of counsel), for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss and Edward D. Saslaw of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant, by permission, from an order of the County Court, Orange County (Robert H. Freehill, J.), dated December 14, 2020, which, upon a decision of the same court dated October 23, 2020, made after a hearing, denied that branch of her motion which was pursuant to CPL 440.10 to vacate, on the ground of ineffective assistance of counsel, a judgment of the same court (Jeffrey G. Berry, J.) rendered October 17, 2012, convicting her of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person, in the first degree, upon her plea of guilty, and imposing sentence.
ORDERED that the order is reversed, on the law, on the facts, and as a matter of discretion in the interest of justice, that branch of the defendant's motion which was pursuant to CPL 440.10 to vacate, on the ground of ineffective assistance of counsel, the judgment is granted, the judgment is vacated, the plea of guilty is vacated, and the matter is remitted to the County Court, Orange County, for further proceedings.
The defendant, a licensed practical nurse, was hired to provide home care for a physically disabled child. On November 23, 2011, the defendant bathed the child and noticed that the child's skin was red and peeling. After the child's mother returned home, the defendant accompanied the mother and child to the pediatrician's office. That same day, the child was taken to Westchester Medical Center and received treatment for a period of five weeks.
On November 30, 2011, the defendant was interviewed by an investigator from the Orange County Child Abuse Task Force, after which the defendant signed a confession, and wrote a letter of apology to the child's parents. Thereafter, the defendant was indicted on charges, inter alia, of assault in the second degree, and endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person, in the first and second degrees on the theory that she recklessly bathed the child in hot water, causing the child to sustain thermal burns.
On July 24, 2012, the defendant, represented by counsel, entered a plea of guilty to one count of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person, in the first degree. During her plea allocution, the defendant stated that before bathing the child, she tested the water and "it was not that hot." After an off-the-record discussion, and upon questioning by the County Court, the defendant agreed that she "made an error" when she tested the water temperature, and that she was "reckless." The court accepted her plea of guilty, and sentenced the defendant to four months of incarceration in the Orange County Jail, to be followed by five years of probation. The defendant completed serving her sentence.
In April 2014, the defendant moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction on the grounds that she was actually innocent and that she was deprived of the effective assistance of counsel. With respect to her claim of ineffective assistance of counsel, the defendant contended, inter alia, that her former attorney failed to secure pertinent medical records, such as the results of a biopsy performed on the child, and that her former attorney failed to retain a medical expert.
By order dated January 12, 2015, the County Court denied the defendant's motion without a hearing. By decision and order dated March 1, 2017, this Court reversed the order of the County Court (see People v. Tiger, 149 A.D.3d 86, 48 N.Y.S.3d 685 ), determining that: the defendant's plea of guilty did not absolutely bar her from maintaining a freestanding actual innocence claim under CPL 440.10(1)(h) ; the defendant had made a prima facie showing of actual innocence; and the defendant was entitled to a hearing on both the actual innocence and ineffective assistance of counsel claims. This Court remitted the matter to the County Court for a fact-finding hearing and, thereafter, a new determination of the defendant's motion (see People v. Tiger, 149 A.D.3d at 113, 48 N.Y.S.3d 685 ).
By order dated August 15, 2017, the Court of Appeals granted the People's motion for leave to appeal (see People v. Tiger, 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 ). In their brief to the Court of Appeals, the People argued that a claim of actual innocence does not lie under CPL 440.10(1)(h), but they did not challenge the portion of this Court's decision and order which reversed and remitted the matter for a hearing on the defendant's ineffective assistance of counsel claim (see People v. Tiger, 32 N.Y.3d 91, 93, 98, 85 N.Y.S.3d 397, 110 N.E.3d 509 ). On June 14, 2018, the Court of Appeals reversed this Court's decision and order insofar as appealed from and denied that branch of the defendant's motion which was based on the claim of actual innocence, holding, in pertinent part, that "where the defendant has been convicted by guilty plea, there is no actual innocence claim cognizable under CPL 440.10(1)(h)" ( id. at 103, 85 N.Y.S.3d 397, 110 N.E.3d 509 ).
Between November 2019 and November 2020, the County Court held an evidentiary hearing on that branch of the defendant's motion which was to vacate the judgment on the ground of ineffective assistance of counsel. By order dated December 14, 2020, upon a decision dated October 23, 2020, the court denied that branch of the defendant's motion. The defendant appeals, and we reverse.
"A defendant has the right to effective assistance of counsel before deciding whether to plead guilty" ( People v. Tindley, 202 A.D.3d 838, 838, 162 N.Y.S.3d 161 ; see People v. Flinn, 188 A.D.3d 1093, 1094, 132 N.Y.S.3d 657 ). "Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness, and that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ " ( People v. Bodden, 82 A.D.3d 781, 783, 918 N.Y.S.2d 141, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; see People v. Tindley, 202 A.D.3d at 838–839, 162 N.Y.S.3d 161 ). "Under the New York standard, a court must examine 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. Tindley, 202 A.D.3d at 839, 162 N.Y.S.3d 161 [internal quotation marks omitted]; see People v. Oliveras, 21 N.Y.3d 339, 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
"In cases asserting ineffective assistance of counsel in the context of a guilty plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different" ( People v. Tindley, 202 A.D.3d at 839, 162 N.Y.S.3d 161 [internal quotation marks and citations omitted]; see People v. Parson, 27 N.Y.3d 1107, 1108, 36 N.Y.S.3d 85, 55 N.E.3d 1058 ; People v. Saunders, 193 A.D.3d 766, 768, 145 N.Y.S.3d 121 ; People v. Flinn, 188 A.D.3d at 1094, 132 N.Y.S.3d 657 ).
Defense counsel's "investigation of the law, the facts, and the issues that are relevant to the case" is "[e]ssential to any representation, and to the attorney's consideration of the best course of action on behalf of the client" ( People v. Oliveras, 21 N.Y.3d at 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ; see People v. Tindley, 202 A.D.3d at 839,...
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