New York Law Review

Tag: People v. McDonald

  • People v. McDonald, 1 N.Y.3d 109 (2003): Ineffective Assistance of Counsel and Misadvice on Deportation Consequences

    People v. McDonald, 1 N.Y.3d 109 (2003)

    An attorney’s affirmative misstatement regarding the deportation consequences of a guilty plea can constitute ineffective assistance of counsel, but the defendant must demonstrate prejudice by showing a reasonable probability that they would have gone to trial had they been correctly advised.

    Summary

    Bruce McDonald, a lawful permanent resident, pleaded guilty to drug charges based on his attorney’s incorrect advice that his long-term residency and U.S. citizen children would prevent deportation. After being served with deportation papers, McDonald moved to vacate his conviction, arguing ineffective assistance of counsel. The New York Court of Appeals held that while an attorney’s affirmative misstatement about deportation can be ineffective assistance, McDonald failed to demonstrate prejudice because he didn’t allege he would have gone to trial but for the incorrect advice. The court affirmed the denial of his motion.

    Facts

    Bruce McDonald, a Jamaican immigrant and lawful permanent resident for over 20 years, was arrested for selling marihuana to an undercover officer. A subsequent search of his apartment revealed cocaine, marihuana, and drug paraphernalia. McDonald had three U.S. citizen children and a U.S. citizen wife. His attorney incorrectly advised him that his guilty plea would not result in deportation due to his lengthy U.S. residence and his children’s citizenship. McDonald then pleaded guilty to criminal sale of marihuana and criminal possession of a controlled substance.

    Procedural History

    After pleading guilty and being sentenced, the INS served McDonald with a notice of deportation. McDonald moved to vacate the judgment of conviction, claiming ineffective assistance of counsel. The County Court denied the motion without a hearing. The Appellate Division affirmed, stating McDonald failed to demonstrate prejudice. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether an attorney’s incorrect advice regarding the deportation consequences of a guilty plea constitutes ineffective assistance of counsel under the Sixth Amendment.
    2. Whether a defendant must demonstrate prejudice (i.e., that they would have proceeded to trial) to succeed on a claim of ineffective assistance of counsel based on misadvice about deportation consequences.

    Holding

    1. Yes, because an attorney’s affirmative misstatement regarding deportation can fall below an objective standard of reasonableness and thus constitute deficient performance.
    2. Yes, because to establish ineffective assistance, the defendant must show a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.

    Court’s Reasoning

    The Court of Appeals applied the two-pronged Strickland v. Washington test for ineffective assistance of counsel. Under Strickland, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. The court found that the attorney’s misadvice regarding deportation consequences satisfied the first prong, as it fell below an objective standard of reasonableness. The court distinguished the case from situations where counsel merely fails to advise about deportation, which does not automatically constitute ineffective assistance. The court emphasized that here, counsel gave affirmatively incorrect advice. However, the court held that McDonald failed to satisfy the second prong because his motion to vacate the conviction lacked a factual allegation that he would have gone to trial had he been correctly advised. The court noted that “defendant was required to allege necessary facts to support his motion to vacate the judgment of conviction” and he failed to do so. The Court clarified that this case did not require a prediction analysis regarding the likely outcome of a trial. The key issue was whether McDonald showed he would have chosen to go to trial had he known the truth about the deportation consequences. The court affirmed the denial of McDonald’s motion because he failed to make this crucial showing of prejudice. The decision underscores the importance of defendants making specific factual allegations in support of ineffective assistance claims.

  • People v. McDonald, 88 N.Y.2d 281 (1996): Establishing Larceny Through Medicaid Fraud with Unambiguous Billing Codes

    People v. McDonald, 88 N.Y.2d 281 (1996)

    When a professional billing code has a clear, technically defined meaning within a specific profession, using alternative methods not meeting that definition to obtain reimbursement constitutes larceny.

    Summary

    Defendants McDonald and Strogov, podiatrists, were convicted of grand larceny for submitting Medicaid claims under a billing code (90473) for custom-made orthotics. The prosecution argued that the code required a three-dimensional cast of the patient’s feet, while the defendants used less accurate two-dimensional methods. The Court of Appeals affirmed the convictions, holding that the term “casting” had a universally recognized meaning within podiatry, requiring a three-dimensional mold. Submitting claims without meeting this standard, therefore, demonstrated larcenous intent, especially given additional evidence of intentional misrepresentation.

    Facts

    McDonald and Strogov, participating podiatrists in the New York Medical Assistance Program, submitted claims under billing code 90473 for “Foot mold, balance inlay support (casting and fabrication).” Instead of creating three-dimensional casts of patients’ feet, as the prosecution contended the code required, they used tracings or pressure imprints. These methods involved sending a two-dimensional outline or footprint to a laboratory that supplied prefabricated stock orthotics, rather than custom-made devices based on a three-dimensional mold. The maximum reimbursement under the code was $46.

    Procedural History

    McDonald was convicted in a jury trial of grand larceny and offering a false instrument for filing. Strogov was convicted of grand larceny in a bench trial. Both defendants appealed their convictions. The Appellate Division affirmed the convictions, finding the billing code unambiguous. The defendants then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Medicaid billing code 90473, using the phrase “casting and fabrication,” unambiguously requires the creation of a three-dimensional cast or mold of the patient’s feet.

    2. Whether there was legally sufficient evidence to prove that the defendants submitted claims under code 90473 with larcenous intent.

    Holding

    1. Yes, because the term “casting” has a universally recognized meaning within the podiatric profession to require a three-dimensional cast or mold.

    2. Yes, because the act of submitting claims under code 90473 without creating a cast or mold constitutes circumstantial evidence of larcenous intent, and additional evidence of intentional misrepresentation existed in both cases.

    Court’s Reasoning

    The Court found that the term “casting” has a well-established meaning within the podiatric profession, referring to the creation of a three-dimensional cast or mold. Expert testimony confirmed this understanding. The court reasoned that billing codes intended for professional use can rely on technical terms understood within the relevant profession. “As the podiatry fee schedule is intended for use by members of the podiatric profession, the use of technical terms recognized by the profession to describe the scope of permissible work that can be billed under code 90473 provides an explicit and nonarbitrary standard for enforcement of proper Medicaid billing practices and imposing criminal responsibility for flagrant violations thereof.” Because the defendants used methods that did not meet the definition of “casting,” their actions constituted circumstantial evidence of intent to defraud. In McDonald’s case, a former partner testified they knowingly billed for custom-made orthotics when they provided prefabricated devices. In Strogov’s case, an intern was instructed to falsify patient charts to indicate that casts were made. This additional evidence further supported the conclusion of larcenous intent. The court stated, “in each case, the evidence was legally sufficient to support the fact finder’s conclusion that defendants’ improper billing was done with criminal intent.”

  • People v. McDonald, 68 N.Y.2d 1 (1986): Concurrent Representation as Conflict of Interest

    68 N.Y.2d 1 (1986)

    An attorney’s concurrent representation of a criminal defendant and the victim of the alleged crime constitutes a conflict of interest requiring judicial inquiry and informed consent from the defendant to ensure effective assistance of counsel.

    Summary

    James McDonald was convicted of arson. His attorney, Werner Lomker, also represented the lumber company whose shed McDonald was accused of burning. The New York Court of Appeals reversed the conviction, holding that Lomker’s concurrent representation created a conflict of interest. The court emphasized that the trial judge failed to inquire into McDonald’s awareness of the potential risks and obtain his informed consent. The court held that such a conflict, impacting the conduct of the defense, deprived McDonald of effective assistance of counsel, necessitating a new trial. The court also addressed and rejected McDonald’s arguments regarding the sufficiency of evidence and the Appellate Division’s jurisdiction.

    Facts

    James McDonald was charged with arson for setting fire to a shed owned by the Lyell Exchange Lumber Company. McDonald was represented by attorney Werner Lomker. Lomker also represented the lumber company. Michael Lazzaro, the company’s vice-president, initially submitted an affidavit minimizing the fire damage. At trial, Dean Lazzaro, another company officer, testified about McDonald’s motive, citing theft and poor terms of departure from the company weeks before the fire. Defense counsel Lomker acknowledged his uncomfortable relationship with Lazzaro during cross-examination.

    Procedural History

    McDonald was convicted of arson in the third degree. The trial court modified the verdict to attempted arson due to insufficient proof of damage. The Appellate Division reversed, reinstating the original guilty verdict, finding sufficient evidence of damage and no conflict of interest. McDonald appealed to the New York Court of Appeals, arguing ineffective assistance of counsel due to a conflict of interest.

    Issue(s)

    1. Whether defense counsel’s concurrent representation of the defendant and the company whose property was damaged constituted a conflict of interest, thereby denying the defendant effective assistance of counsel.

    2. Whether the Appellate Division had jurisdiction to hear the People’s cross-appeal from the trial court’s order modifying the jury verdict.

    3. Whether the evidence was legally sufficient to sustain McDonald’s conviction for arson in the third degree.

    Holding

    1. Yes, because defense counsel’s concurrent representation of the defendant and the victim company created a conflict of interest that, without judicial inquiry and informed consent, deprived the defendant of effective assistance of counsel.

    2. Yes, because CPL 450.20(3) grants the People the right to appeal an order setting aside a verdict, which includes modifying the verdict.

    3. Yes, because the evidence of charring and incidental damage caused by firefighting efforts was legally sufficient to sustain the conviction for arson in the third degree.

    Court’s Reasoning

    The Court of Appeals held that a defendant is denied effective assistance of counsel when the attorney concurrently represents conflicting interests without judicial inquiry and informed consent. The court emphasized the trial judge’s duty to protect the defendant’s right to effective counsel and to conduct an inquiry when a potential conflict is apparent. Citing People v. Gomberg, the court stressed the need to ascertain whether the defendant is aware of the potential risks involved and has knowingly chosen to proceed. The court found an actual conflict because the attorney represented both the accused and the victim simultaneously. Dean Lazzaro’s testimony regarding McDonald’s employment history was integral to the prosecution’s case, placing defense counsel in an awkward position regarding impeachment. The court stated, “[t]he victim of a crime is not a detached observer of the trial of the accused, and his ‘private attorney’ is likely to be restrained in the handling of that client/witness.” Although not adopting a per se rule, the court found a substantial possibility of prejudice existed due to the conflict, warranting reversal. The court also held that slight burning or charring is sufficient to constitute damage under the arson statute, and the Appellate Division had jurisdiction to hear the People’s appeal of the modified verdict.