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 ), 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)
The Supreme Court reverses the Maryland Court of Appeals finding that James Kulbicki did not have effective assistance of counsel. Amongst legal scholars, the Strickland Standard is well known. Indeed, the Supreme Court “held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel.” Pp. 1 (citing Gideon v. Wainwright, 372 U. S. 335, 344 (1963)). “Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” Pp. 1 (quoting Strickland v. Washington, 466 U. S. 668, 687 (1984)). Some legal scholars have gone so far as to compare this standard to the foggy mirror test: hold a mirror underneath the criminal defense lawyer’s face to see if the mirror fogs – as long as it fogs, there is effective assistance of counsel.
The Supreme Court said that the Maryland Court of Appeals applied this standard “in name only” (pp. 1), finding an expert report favorable to the defendant unlikely to be found at the time and/or impact the finding of guilty. Here the expert testimony elicited at trial compared the lead in the bullet within the victim’s skull and the lead of the remaining bullets the defendant possessed and found it likely to be the same lead. It was Comparative Bullet Lead Analysis (“CBLA”) which, although accepted at the time, was contradicted by an report existing at the time written by Agent Peele. Like any good science, Comparative Bullet Lead Analysis has been criticized and fallen out of favor by current scientific standards: Remember, the expert at Kulbicki’s trial indicated that it was likely that the very same lead found in the victim’s brain that was also found in a box of bullets that Kulbicki purchased. Noting the errors in this science, “[o]ne of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box.” Pp. 2. The Maryland Court of Appeals, indicating that the testimony is at significant odds with what is taken as knowledge today, looked at this faulty assumption as a good reason to overturn this conviction.
The Supreme Court reverses, finding that “The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA.” “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Pp. 3. The Supreme Court critiques the Maryland Court of Appeals for second-guessing the trial strategy in light of what was a well-accepted science in the 1990s but not, as the Supreme Court indicated, an accepted science in 2003. “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Pp. 4. “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt there is any needle there.’” Pp. 4 (quoting Rompilla v. Beard, 545 U. S. 374, 389 (2005)).
The Supreme Court again asserts that the ineffective assistance of counsel standard is not perfect advocacy but reasonable competence. “Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.” Pp. 5. Reversed.
The case is Maryland v. James Kulbicki, 577 U.S. ___ (Oct. 5, 2015).