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Berry v. Ercole

May 12, 2009


The opinion of the court was delivered by: Denise Cote, District Judge


Pared to its essentials, the question presented through this habeas petition is whether an attorney provides ineffective assistance of counsel when he fails to advise his client, who is adamant in his position that he is innocent, to plead guilty. In this case, the answer is no.

James Berry filed this petition for a writ of habeas corpus in 2006, challenging his conviction on attempted murder and other charges. The petition was referred to the Honorable Theodore Katz, who issued a report on December 19, 2008 ("Report") recommending that the petition be granted solely with respect to Berry's claim that his trial counsel provided ineffective assistance in connection with Berry's decision to reject on the eve of trial a plea offer of nine years' imprisonment in satisfaction of all charges. Berry proceeded to trial, was found guilty of all charges submitted to the jury, and was sentenced principally to thirty-five years' imprisonment.

The Report relied significantly on the testimony given by Berry and his trial counsel Allan Brenner ("Brenner") during a November 2008 hearing before Magistrate Judge Katz. After the respondent objected to the Report's recommendation that the writ be issued, this Court again heard testimony from Berry and Brenner. This Opinion presents the procedural history relevant to this ineffective assistance of counsel claim and this Court's findings regarding the claim. For the reasons explained below, the petition is denied in its entirety.


Berry was arrested on November 30, 1999, following a fifty-block high-speed car chase down the Harlem River Drive and the FDR Drive. He already had a long arrest record, although he had no felony convictions. For two recent arrests, Berry had been successfully represented by Scott Brettschneider ("Brettschneider") and by Brenner, an experienced criminal defense trial lawyer who worked in an "of counsel" capacity at Brettschneider's firm.*fn1 Each attorney had defended Berry at trial and each had won an acquittal. As a result, Berry, who had been remanded to Rikers Island following his November 30 arrest, and his family retained Brettschneider to defend Berry and obtained the services of Brenner as Berry's trial counsel.

The high-speed chase on November 30 began at the scene of a shooting. As shown by the testimony at Berry's state court trial in 2001, Berry had physically harassed Aileena Brown ("Brown") in a Manhattan grocery store. She protested and when they emerged from the store, her husband, Boris Grant ("Grant"), confronted Berry. The two men fought, and Berry called out to Jarrett Smith ("Smith"), his co-defendant at trial, to "pop them." Brown and Grant ran, shots were fired, and a bullet struck Grant in the back, seriously injuring him. At that point Berry and Smith got into a car and sped away. The police pursued the car on the Harlem River Drive and then on the FDR Drive. Smith and Berry abandoned their car in traffic and fled on foot. Police officers caught Berry and Smith and took them to the hospital where Grant was being treated. Grant identified both of them. The next day, Brown identified Berry in a lineup. Both victims identified Berry at trial.

Berry and Smith were indicted for these events in five counts, the most serious being attempted murder in the second degree. That charge carried a maximum term of twenty-five years' imprisonment. The indictment joined the charges stemming from the November 30 shooting with other charges against Berry and Smith from an incident that had occurred just five days earlier.

The evidence at trial showed that on November 25, 1999, Berry and Smith approached two men in front of a shop at 154th Street and Bradhurst Avenue in Manhattan. While Smith aimed a gun at them, Berry took their jewelry and cash, said "we killers, we murderers," and tried to punch one of the victims in the face. When the victims ran away, shots were fired, and a bullet hit one of them in the right shoulder. At trial, both victims identified Berry as one of the men who robbed them on November 25, and they identified a hat that had been recovered from Berry and Smith's November 30 getaway car as the hat Berry wore during the robbery. The indictment included 15 charges for this November 25 incident, the most serious of which were two more charges of attempted murder in the second degree.

It was Brenner's practice to describe to his clients the sentencing exposure on the top counts in an indictment and to explain whether a consecutive sentence could be imposed. Because of the passage of time, Brenner has no present recollection of having this specific conversation with Berry, but he knows of no reason why he would not have followed his regular practice. It appeared to Brenner that Berry understood that consecutive sentences could be imposed; after all, he was indicted for charges relating to two separate incidents.

Counsel for co-defendant Smith filed a motion on January 18, 2000 requesting inspection of the grand jury minutes and dismissal of the indictment, discovery, a bill of particulars, a Wade hearing, a Mapp hearing, and severance of the counts that relate to the two separate incidents.*fn2 On February 23, the New York County Supreme Court granted Smith's requests for inspection of the minutes, discovery, a bill of particulars, and the hearings; it denied Smith's severance motion. Berry's counsel filed no pretrial motions.*fn3

As Brenner gained a better understanding of the prosecutor's case, principally through receipt of discovery material, Brenner developed an assessment of the case. He thought that Berry had a defensible case if the events of November 25 were tried alone, but that the defense of those charges became much more difficult because of spillover prejudice from a joint trial with the November 30 charges. As for the latter charges, Brenner intended to pursue a mere presence defense and recommended that Berry take the stand and blame the shooting on his co-defendant since the prosecutor could not show who had fired the gun.

In his conversations with Brenner, Berry continually maintained that he was innocent. He said that he was in Queens at the time of the November 25 incident in Manhattan, and that all he had done on November 30 was have a fight. He denied assaulting Brown on November 30, inflicting any serious injury on Grant, or being involved in any way in the shooting. He refused, moreover, to blame his co-defendant for the shooting. Berry's decision deprived Brenner of his best strategy, but he respected Berry's decision.

In Brenner's view, he and Berry communicated well and understood each other's positions. Brenner had given Berry his home telephone number. In particular, they discussed the case when they met in person at two or three court appearances during the year preceding Berry's trial.*fn4 Brenner reports that Berry was engaged in their conversations about the case and that he and Berry were candid with one another. Berry, who was thirty by the time of trial, was experienced with the criminal justice system. Brenner felt Berry had a good understanding of his case.

At some point, Berry's indictment was assigned to the Honorable John Bradley of the New York Supreme Court, New York County. Brenner told Berry at that time that Judge Bradley was a fair trial judge but a "harsh" sentencing judge. He described the prosecutor as thorough but someone who could be distracted by red herrings and get lost in the details.

Trial began on February 2, 2001. Just before jury selection, Berry was offered a plea of nine years' imprisonment in satisfaction of all of the charges. Brenner relayed the plea offer to Berry and Berry's family and told Berry that it was a generous offer in light of the charges and the evidence Berry would face at trial. Berry immediately and vehemently rejected the idea of entering any plea.*fn5 Brenner never advises a client who adamantly maintains his innocence to plead guilty and did not advise Berry to take this plea offer.

As of the time Berry rejected the plea offer, Berry knew from his conversations with Brenner that the witness identifications for the first incident were vulnerable to attack, but that the joinder of the two incidents for trial made it more difficult to defend against the charges arising from the first incident. He was of course aware that the shooting victim for the second incident had been seriously injured, that Berry and his co-defendant were charged with attempted murder, and that he had been caught by the police following a high-speed chase, having just left the scene of the shooting. Berry had also rejected Brenner's recommendation that he place the blame for the shooting on his co-defendant.

After Berry rejected the plea offer, Judge Bradley engaged him in the following colloquy:

The Court: [H]ave you had full opportunity to discuss with your lawyers the plea offers that have been made in this case? . . .

Berry: Yes.

The Court: I take it, you . . . want to go to trial, is that correct?

Berry: Yes. . . .

The Court: You understand that you could get a substantially longer sentence as a result of being convicted after trial, you understand that?

Berry: Yes.

The Court: You're willing to risk that, is that correct?

Berry: Yes.

Berry did not take the stand at trial. He was convicted on all counts.*fn6

Berry had new counsel following trial. In advance of the sentencing hearing, Berry's new attorney asked for a psychological examination of Berry. During that examination, Berry described to the physician his history and the charges against him. Berry explained that he faced up to twenty-five years' imprisonment.

At sentencing, which occurred on June 11, 2001, the prosecutor reminded the court that the defendant had rejected a plea offer of nine years' imprisonment, and she summarized the trial evidence about the defendant's involvement in the separate incidents of November 25 and 30. The prosecutor requested a sentence of forty-five years and explained that she was asking for the court to impose consecutive sentences for the two incidents, as it had done when it sentenced Smith. Defense counsel mainly argued that Berry's greatest crime was associating with Smith, and asked for the minimum sentence on all counts arising from the two separate incidents and for all sentences to run concurrent with each other. Berry addressed the ...

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