Tag: Appellate Division

In a strange twist, a convicted felon, pro se, wins another crack at a suppression hearing on the basis of ineffective assistance of counsel. The  Court noted that the “record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to move to reopen the suppression hearing based on trial testimony” contradicting a previous statement(s) by law enforcement. Pp. 2. Noting the standard for reopening a suppression hearing, the Court observed that:

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. With regard to the “reasonable diligence” requirement, the People argue that it was not met here because defendant, who was standing several feet from the superintendent when the police arrived, was in a position to know whether the bag was closed or open at the time. Under the rule the People posit, evidence adduced for the first time from a witness at trial — no matter how reliable the witness, how unlikely he or she would have been to cooperate with the defense investigation before trial, or how conclusively his or her testimony would undermine the suppression ruling — would never entitle a defendant to a reopened hearing, so long as the defendant was in a position where he or she could have observed the same events as the witness. We reject such a narrow reading of the statute (see e.g. People v. Figliolo, 207 AD2d 679 [1st Dept 1994]). While, as a general matter, a defendant may be presumed to have knowledge of the circumstances surrounding his or her arrest (see People v. Hankins, 265 AD2d 572 [2d Dept 1999], lv denied 94 NY2d 880 [2000]), that presumption is not mandatory, and the principle does not mandate the conclusion that such knowledge existed under the particular facts of this case.

The Court notes that the Defendant “could not have known that a People’s witness would completely contradict the police officers on the critical suppression issue. Moreover, if at the hearing, he had taken the stand to present his account of the arrest, his credibility would have been subject to impeachment because his status as an interested witness and his lengthy criminal record.” Pp. 2. In making its conclusion, the Court finds that “it is far more likely that counsel, who did not represent defendant at the suppression hearing, did not focus on the contradiction and gave no thought to a motion to reopen. More importantly, even if the dissent is correct about counsel’s subjective belief that the superintendent was mistaken about the police opening the bag, it is difficult to comprehend how opting not to give the court the opportunity to make that credibility determination for itself can be deemed a competent strategy.” P. 3. more

In Chemung County, New York, ” Defendant was charged by indictment with assault in the second degree stemming from an incident in July 2012 where he allegedly ran over his girlfriend, Deborah Meyer, with a pickup truck.” Pp. 1.

At issue was the “County Court [ruling] that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record.” Pp. 2. Nonetheless, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court.” Id.

Rule: “To prevail on his ineffective assistance of counsel claim on the basis of [a] single failure to object, defendant must show both that the objection omitted by trial counsel is a winning argument…and that the objection was one that no reasonable defense lawyer, in the context of the trial, could have thought to be ‘not worth raising.'” People v. Brown, 17 NY3d 742, 743-744 (2011), quoting People v. Turner, 5 NY3d 476, 481 (2005)). “In our view, defendant has met his burden of demonstrating a lack of strategic or other legitimate reason for his defense lawyer’s failure to object.” Pp. 2 (citing People v. Rivera, 71 NY2d 705, 709 (1988)).

Under the circumstances, the Court found “that no reasonable defense lawyer could have thought that such an objection would not have been worth making,” and , therefore, this constituted ineffective assistance of counsel. Pp. 3  Judgment is reversed and the matter is remitted for a new trial.

The case is People v. Ramsey, 106652, NYLJ 1202744267116, at 1 (App. Div., 3rd, Decided December 3, 2015)

Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division  noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.

Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).

Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).

In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.

The case is People v. Clermont, available here (NY Law Journal)