Justice Albert Tomei
Nicelli moved to vacate his conviction for enterprise corruption arguing ineffective assistance of counsel by both trial attorneys, Medina and Russo. He rejected the court’s offer of 5 to 15 years’ incarceration, and opted to enter an open plea to the indictment in which the court imposed an 8 to 24 year sentence. Nicelli argued Medina was ineffective for rejecting or not advising him to enter into a pre-indictment cooperation agreement in exchange for a five year sentence. The court rejected such assertion noting Nicelli informed Medina he hoped for no jail time for any cooperation agreement, stating Nicelli failed to testify he was willing to accept a plea requiring a five year sentence. Nicelli also alleged Russo was ineffective for giving faulty legal advise about the risks of an open plea. The court found the record revealed Russo only suggested the open plea to prevent Nicelli from refusing to enter a guilty plea and insisting on going to trial because he believed no lesser or better outcome could be obtained by those options. Hence, the court concluded Nicelli’s decision to enter the open plea was knowing and voluntary, and not the result of defective legal advice, denying vacatur.
