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.
-----------------------
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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                                - 2 -                 Nos. 160 & 161

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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                               - 4 -                Nos. 160 & 161

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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                                 - 5 -                 Nos. 160 & 161

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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                                - 6 -                 Nos. 160 & 161

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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