||STATE OF NEW YORK || SUPREME COURT COUNTY OF MONROE ine PEOPLE OF THE STATE OF NEW YORK, i as Indictment No. 1005/2017 Index No. 010959/2017 ‘TERRENCE M. LEWIS A/K/A“BABYT," Docket No, 70110-17 Defendant. APPEARANCES: | For the People: SANDRA J. DOORLEY | “Monroe County District Attorney i "Assistant Distriet Attorney Martin P. McCarthy, IT | 47 South Fitzhugh Stret | Rochester, New York 14614 For Defendant: PIOTR BANASIAK, ESQ. cae Banasiak Law Office, PLLC amt || 499 South Warren Street, 4th Floor ¥EB& || Syracuse, New York 13202 nooo ‘Gres DECISION AND ORDER STEPHEN T. MILLER, ACTING J. ‘On May 26, 2015, defendant participated in shooting, and killing Johnny C. ‘Washington. As a result, defendant was charged by way of a sealed indictment. At the | time the indictment was filed, defendant was incarcerated in Allenwood Federal | Correctional Institution in Pennsylvania serving 2 60 month federal sentence, On November 3, 2017, Monroe County law enforcement officials lodged a detainer against defendant with Allenwood FCI. The detainer notified the federal| I authorities that defendant hada full extradition sealed indictment warrant out of Monroe County. Defendant exeicised his rights under article I of the Interstate Agreement on Detainers Act “LAD” on November 7, 2017, by formally requesting a final disposition of the untried New York charges. Defendant's request was delivered to Monroe County Court (Dinolfo, 1) and to the prosecutor, both of whom signed the IAD paperwork on December 21, 2017. On January 18, 2018, defendant appeared in Monroe County Court and | indictment number 1005-2017 was unsealed, Defendant, who was present with his | anorney, was araiged on one count of murder inthe second degree (Penal Law §§ 20,00, 125.25 [ID. Afterall ofthe parties conferred, the homicide case was issued a jury trial date of October 1, 2018. The ease was then adjourned to March 28, 2018, forthe ergument of motions. Before the arraignment appearance ended, defense counsel indicated on the record, “Because ofthe seriousness of this charge I ask thatthe Court | order he stay in Monroe County pending final resolution ofthis mater” In esponse, the trial judge indicate, “I will rant that request at least through the motion argument stage. Ifthere isa reason that should change we can deal with it ata ater date.” ‘As scheduled, on March 29, 2018, motions were argued with defendant present. Then on May 7, 2018, a suppression hearing was held in the case. After the suppression hearing was held, a “Notice of Detainer” document for defendant's retum to FCI Allenwood was generated on May 17, 2018, by the Monroe County Sheriff's Office.While the document indicated defendant was retuned pursuant to a “Court Order to | Produce,” no court ever ordered defendant’s return fo Allenwood, Pennsylvania, nor was there ever a court order produced that demanded a change in the custodial status of | defendant. Defeadant was received back by the U.S. Marshal’s on May 18, 2018. _| Secondary IAD paperwork was signed by the assistant district attorney and the assigned Judge on June 29,2018, to retum defendant back to Monroe County for trial on the homicide charge. On June 27, 2018, defendant submitted a pro se motion secking dismissal based con an allegation thatthe People failed to prosecute the case within the IAD" requisite 180 days, By response dated August 23, 2018, the People opposed defendant's motion, ‘At a court appearance on August 30, 2018, defendant's pro se motion was adopted by his atomey. During the motion argument, the court asked defendant's atiomey whether defendant, “ever requested or agreed to be returned into federal custody”, to which defense counsel replied, “As far as I know, be did not agree to g0 back into federal custody.” Defense counsel added, “I think onthe record many months ago, I did ask that he be returned tothe state so that we could prepare for tial.” ‘The newly assigned prosecutor on the mater then set forth, “Its my understanding onthe date of the arraignment, Mr. Lewis was ordered by Your Honor to stay here on the stateside.” The prosecutor explained that after learning defendant had | been returned to federal prison, “I got him back as soon as possible tothe state side.” No‘mention of the ant-shuttling provisions of the IAD were made. By decision filed | September 12,2018, the cout, citing New York v il (528 US 110 2000), found, inter | alia, defendant agreed to atrial date beyond the 180 days. ‘A jury tial commenced October 1, 2018, and on October 11,2018, the jury found | || defendant guilty of murder inthe second degree. On December 7, 2018, defendant was | sentenced to an indetermirate term of incarceration with the Department of Corrections and Community Supervision of 22 years to life. Defendant has yet to perfect his direct appeal | ‘On March 27, 2023, defendant's appellate attorney filed this motion pursuant to Criminal Procedure Law § 440.10 to vacate his convietion. In his moving papers, | defendant alleges his attorney was ineffective because he made a single Tuner error that deprived him of the effective assistance of counsel (see People v Twner, S NY3d | 476 [2005)). Defendant alleges that had his attorney filed « motion to dismiss the indictment with prejudice >ased on the ant-shuttling provisions in the [AD (CPL | 80.20, article IL, § 4; article IV, § e) his attorney would have been successful in | obtaining outr dismissal of the murder charge with prejudice. | Attached to defendant's moving papers are 12 exhibits. Exhibit A contains three ‘court documents including the uniform sentence and commitment sheet. Exhibit B is a copy of indictment #1005-2017 with handwriting. Exhibit C is « 28-page copy of the‘Notice of Detainer from December 13, 2018.! Exhibit D isa single page titled “Booking, Summary.” Exhibit Eis a certified transcript from January 18, 2018. Exhibit F is a copy of defendant's pro se motion from June 27, 2018, Exhibit G is a certified transcript from ‘August 30, 2018. Exhibit H isa four-page Decision and Order (Dinolfo, J.) filed September 12, 2018. Exhibit I is a wo-page affidavit from defendant sworn to December 21, 2022. Exhibit J purports to be two pages of printed emails between appellate counsel and trial counsel. Exhibit K purports to be two pages of printed emails, between appellate counsel and the Monroe County District Attorney's Office. Exhibit L is a four page cross-motion and responding affirmation filed by the People on August 23,2018, ‘The People filed an Answering Affirmation on June 21, 2023, conceding | defendant's claim. Attached to the People's response were two exhibits: Exhibit | was an 11-page notification of defendaat requesting disposition under IAD dated November 7, 2023; and Exhibit 2 is a copy of the one+ ge securing order from January 18, 2018. On June 22,2023, defendant's course indicated in a lester that “i light ofthe District, | Attomey’s apparent concession I will not be fling a reply affirmation...” This ate was transferred to this Cour: on July 19, 2023. Oral argument was scheduled for December 7, 2023. At this appearace, the Court granted a hearing to determine the | Defendant's social security number appears on page one of tis document andi hereby suck and ‘redacted to th a four digs by dh Decision and Oder prea 22 NYCRR 2025 (6) (1) (). Hl 5 | | | \ |‘On December 28, 2023, the assistant district attorney electronically sent 23 pages of records from Monroe County Sheriff's Department regarding the transfer of defendant between Monroe Courty Jil and Allenwood FCT. On January 3, 2024, efense counsel submitted five pages of information abtained from his FOIA request to the Bureau of Prisons on October’, 2022, thet were not previously included with the other materials obtained fiom the Bureau of Prisons contained in his original moving papet’s Exhibit C (On Friday, January 5,2024, with defendant present, a 440 hearing was held. Defendant did not call any witnesses. The People put forth one witness, Kim Hinkley, counsel to Monroe County Sherif's office. The People further admitted the 23 pages of records previously electronically submitted to the Court as People’s Hearing Exhibit 1 on stipulation. “The Court has reviewed the defendant's moving papers, the People’s answering affirmation, oral argument, the party's elettronic submissions, the hearing testimony, and exhibit and finds that defendant's tral attomey handling of the [AD motion was objectively unreasonable and this singular egregious eror rendered defendant's representation ineffective (see e.g People v Stewart, 171 AD3d 625, 626 [Ist Dept 2019], tv denied 34 NY34 984 (2919). ‘As a threshold matter, this claim would not survive had defendant pleaded guilty(see People v Fay, 154 AD3d 1178, 1180 (34 Dept 2017], Iv denied 30 NY34 1115 | (2018) ({shawtoryrighs availabe to defendant under te IAD are not such dees |) implicating the integrity of the process but, rather, are less fundamental and, ths, are not deemed to survive a guilty plea]; see also People v Zak, 242 AD2A 895, 895 [4th Dept 1997]; v denied 91 NY2d 837 [1997] [*Defendant had already entered his guilty plea, thereby waiving his contention with respect to CPL $80.20, and defendant does not contend that defense counsel's subsequent conduct conceming the CPL. $80.20 mation infected the plea bargaining process or that he entered his guilty plea because of that conduct”); but see People v Fargher, 112 AD2d $99, 600 [34 Dept 1985] (“defense counsel was twice assured by County Court that a guilty plea would have no effect on defendant's right to appeal the (IAD issue(s}."). || Nor s this case where defendant was produced pursuant toa wrt of hebess ‘corpus ad prosequendum rather than a detainer (see People v Davis, 120 AD3d 1542, 1543-1544 [4th Depi 2014], fv denied 26 NY3d 1087 [2015] ["Because New York never | sled a detainer against defendant, the (LAD] never became applicable and New York | was never bound by its provisions”). In the instant case, defendant was secured by a | detainer and was found guilty ofthe homicide after jury tral, Therefor, this Cour is | constrained to reach the LAD issue on the merits. “The IAD is « contract among 48 states, the United States, and the District of Columbia” (Headrick v State, 816 So 2d $17, $19 [Ala Crim App 2001). “As ‘accongressionally sanctioned interstate compact” within the Compact Clause of the United | States Constitution, Art. I, § 10, cl3, the IAD is @ federal law suaject to federal |eonstusin” (New York Hil $28 US 110, 111 (200) quoting Carchman v Nash, 473 |) us 716, 719 [1985] and Cuper v Adams, 449 US 433, 442 [1981). The IAD “is designed to encourage the expeditious and orderly disposition of charges outstanding | against a prisoner and determination ofthe proper status of any and all detainers based on wis indentations or compli” (US v Mas 436 IS 340, 242 | [1978] [internal punctuation and quotations omitted) As relevant here, the IAD forbids the return (shuttling) ofa prisoner during the pendency ofa case. Specifically, the IAD provides, “If trial is not had on any indictment, information or complaint contemplated hereby prior o the return of the | prisoner tothe criginal place of imprisonment, such indictment, information ot ) complaint shal not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice” (CPL $80.20, article II, § d). Further, the [AD reiterates, “If trial is not had on any indictment, information or complaint contemplated hereby prior tothe prisoner’s being returned to the original place of imprisonment pursuant to Art sl V{e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shal enter an order dismissing the same with prejudice” (id, starcle IV, § 6). Federal courts have statutory factors to consider in mitigation for anti-shuttling|| violations (18 USCA, app. 2 § 9 [1] 2}ssee eg United States v Walker, | 23-CR-141-JFH, 2023 WL 3588713, a *3 [ND Okla 2023] [“The (IAD) provides that ‘when the United States isthe ‘receiving State,” dismissal ofthe indictment may be with |) or without prejudice"). When a state isthe receiver of a prisoner, however, there is no | carve out provision that allows state judges to use discretion. When states are the receiver, “the language of the IAD is absolute and contains no de minimus exception to the ‘no return’ requirenent® (Scroggins v Com. 446 SW3d234, 235 [Ky Ct App 2014p, |] tnSeroggin, «Kentucky indictment was dismissed due to the defendant being || moved back to Indiana from Kentucky during the pendeney ofan indictment. There, the | concurring judge lamented tha the federal carve-out provision was not available to states, The judge indicated the factors the federal courts ae permited to apply, “would militate in favor of dismissal without prejudice if our courts were permitted to consider them. Unfortunately, our current statute does nt give our cours this disreton. It mandates dismissal with prejudice regardless ofthe factual circumstances” (dat 236 {Uones, J, concurring). As this Court is bound tothe same agreement, this case presents | this Court withthe same lack of discretion ‘As demonstrated by defendants moving papers and at the CPL 440 hearing, | defendant was sent back to FCT Allenvood during the pendeney of his homicide case in |) Monroe County asa cosvenience tothe Monroe County Sheriff's Department. Asprisoner during the pendency of the action is “When it would be mutually advantageous | explained by the U.S. Supreme Court, the only time a receiving State may return a and the prisoner accordingly waives his rights under Article IV(@)" (Alabama v Bozeman, 533 US 146 157 [2001]. Trial counsel was aware atthe time he adopted defendant's prose IAD motion that defendant had not requested ‘ransfer back to Allenwood FCI, and there was no “mutually advantageous” reason defendant was returned to federal prison before the homicide trial occurred. Rather, as the CPL 440 hearing made clesr, the Monroe County Jail unilaterally ‘made the determination to send defendant back to FCI Allenwood without any input from the parties and absent any judicial input or direction. While People’s Hearing Exhibit 1, page 22 indicates defendant was retumed to FCI Allenwood, “Pursuant to: Court Order to Produce,” Mr. Hinkley explained atthe hearing that this meant only a court order would be needed to retum defendant to Monroe Courty for his murder trial on October 1, 2018. The harsh reality is that despite a jury of 12 members of our community determining, ater hearing all ofthe evidence set befere them, that defendant | is guilty ofthe murder ofJhnay C. Washington, this administrative jail decision made based on jail pooulation and timing, not the law, unequivocally entitles defendant to dismissal of the murder in the second degree indictment with prejudice under the exacting requirements ofthe anti-shuttling provisions of the IAD (see Mauro, 436 US at 343),Here, defendant has met his high burden of “demonstratfing] the absence of strategie or other legitimate explanations’ for counsel's allegedly deficient conduct” (People v Caban, § NY3d 143, 152 [2005] quoting People v Rivera, 71 NY24705, 709 (1988). White a defendant is not entitled to perfect representation and singular errors are exceedingly rare, “[eJounsel’s performance must be evaluated to determine whether | ‘he ates and sategies were consistent with those ofa reasonshly competent attorney” | | @eople v Oathout, 21 NY3d 127, 128 [2013] {internal quotation omitted) The fact that defendant’ attomey failed to address the ant-shutling provision, | especially in light of defendant's pro se [AD motion adopted by counsel, combined with the cout’s questioning regarding the shutling, demonstrates tha: defendants attorney's performance fel below the effective standard at both the federal and stat level (see generally Strickland v Washington, 466 US 668 [1984)); People v Baldi, 54 NY2d 137 [1981). This is especially so where defendant aver in his affidavit that upon his return to New York, defendant “told [his] attorney that [he] believed [his] rights under the Interstate Agreement on Detainers were violated,” Yet, defense counsel, who should | nave been aware of the anti-shutling provision ofthe IAD, was aot and appears to have made no effort to review the statute at his client's request. It is well settled that “an isolated error of counsel can constitute ineffective assistance of counsel [should] that error [be] sufficiently egregious and prejudicial” || (People w Flores, 84 NY2d 184, 188-189 [1994] [internal quotations omitted), Had tral abcounse. raised the anti-shuttling issue prior to the tril, defendant would have obtains. outright dismissal of the indictment with prejudice under the IAD's exacting anti shuttling provisions. Therefore, it cannot be said that there was any strategic reason. defense counsel failed to raise this issue. | Given the severity of counsel's error and the lack of effective assistance received by defendant, defendant’s motion to vacate the judgment must be granted. Further, given. | the IAD statute, defendant is entitled to dismissal of the indictment with prejudice (see People v Stewart, \71 AD3d at 626). For all of the foregoing reasons, it is hereby: ORDERED that defendant's full social security number, which appears in Defendant’s Exhibit C attached to his March 27, 2023, moving papers is struck and redacted using only the last four digits pursuant to 22 NYCRR 202.5 (e) (1) (i); and ORDERED that pursuant to CPL 440.10 (1) (h) defendant's motion to vacate is ‘granted in all respects; and ORDERED that pursuant to CPL 440.10 (4), the indictment in this matter is dismissed with prejudice. DATED: Rochester, New York February 5, 2024 Yiu A. ab ‘i: iosoable stptn 7 Mier ‘Acting Justice of the Supreme Court 12