| People v Clermont |
| 2012 NY Slip Op 04189 [95 AD3d 1349] |
| May 30, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jocelyn Clermont, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered June 2, 2008, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree (two counts), upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Queens County, for the issuance of an amended presentence report, and a sentence andcommitment sheet, to provide that the defendant was convicted, under count one of theindictment, of criminal possession of a weapon in the second degree pursuant to Penal Law§ 265.03 (1) (b).
On October 15, 2006, at 9:15 p.m., a detective and a police officer, both wearing plainclothes, were patrolling a neighborhood of Jamaica, Queens, in an unmarked vehicle. The areawas known for gang activity. At some point during the patrol, the detective and the officerobserved the defendant and another man walking down the street. Upon observing the defendantadjusting his right waistband, they stopped their vehicle. They then exited the vehicle, displayedtheir shields, and identified themselves as police. The defendant ran in the opposite direction.While the defendant was being chased by the detective, he removed a firearm from the right sideof his waistband and threw it to the ground. The detective apprehended the defendant and placedhim under arrest. The defendant's attorney moved to suppress the firearm, and the Supreme Courtdirected a suppression hearing. After conducting the hearing, the Supreme Court denied thatbranch of the defendant's omnibus motion which was to suppress the firearm. After a jury trial,the defendant was convicted of criminal possession of a weapon in the second degree and twocounts of criminal possession of a weapon in the third degree.
On the appeal from the judgment of conviction, the defendant argues, inter alia, that he wasdeprived of the effective assistance of counsel at the suppression hearing. Specifically, thedefendant contends that his counsel was ineffective because he failed to make opening andclosing arguments at the suppression hearing, suggesting that counsel did not believe there was abasis for suppression. Further, our dissenting colleague notes that the suppression court thenerred in making [*2]a factual finding that the defendant droppedhis weapon before the police chase rather than during the chase itself.
Under the standard recognized in New York, counsel is effective "when the defense attorneyprovides meaningful representation" (People v Stultz, 2 NY3d 277, 279 [2004] [internal quotation marksomitted]; see People v Henry, 95 NY2d 563, 565 [2000]; People v Baldi, 54NY2d 137, 146 [1981]). "In reviewing claims of ineffective assistance[,] care must be taken to'avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and accordingundue significance to retrospective analysis' " (People v Satterfield, 66 NY2d 796, 798[1985], quoting People v Baldi, 54 NY2d at 146). While a single error may qualify asineffective assistance, it may only do so when the error is sufficiently egregious and prejudicialas to compromise a defendant's right to a fair trial (see People v Caban, 5 NY3d 143, 152 [2005]). Moreover,ineffectiveness claims must be viewed within the context of the fairness of the process as a wholerather than its particular impact on the outcome of the case (see People v Benevento, 91NY2d 708, 714 [1998]; People vBodden, 82 AD3d 781, 783 [2011]; People v Georgiou, 38 AD3d 155, 161 [2007]). Standing alone, thewaiver of an opening and/or closing statement is not necessarily indicative of ineffectiveassistance of counsel (see People v Aiken, 45 NY2d 394, 400 [1978]; People v Chapman, 54 AD3d 507,511 [2008]). Indeed "[i]solated errors in counsel's representation generally will not rise to thelevel of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial"(People v Henry, 95 NY2d at 565-566 [internal quotation marks omitted]; see Peoplev Flores, 84 NY2d 184, 188-189 [1994]).
Notwithstanding the absence of an opening or closing statement and the suppression court'smistaken factual finding as to when the defendant dropped the weapon, we find that the evidence,the law, and the particular circumstances of this case, viewed in totality, reveal that defensecounsel provided meaningful representation (see People v Cummings, 16 NY3d 784, 785 [2011], certdenied 565 US —, 132 S Ct 203 [2011]; People v Benevento, 91 NY2d at712). Defense counsel moved for, and obtained, a suppression hearing. A review of the hearingtranscript demonstrates that defense counsel's cross-examination of the detective was reasonablycompetent and thorough. In lieu of a closing argument, both the prosecutor and defense counselrelied upon the record.
As the defendant argues, and as the People correctly concede, the defendant's presentencereport and the sentence and commitment sheet incorrectly reflect that the defendant wasconvicted, under count one of the indictment, of criminal possession of a weapon in the seconddegree pursuant to Penal Law § 265.03 (2). However, the defendant was convicted underthat count pursuant to Penal Law § 265.03 (1) (b). Accordingly, the matter must beremitted to the Supreme Court, Queens County, for the issuance of an amended presentencereport and sentence and commitment sheet to properly reflect the crime of which the defendantwas convicted under that count.
The sentence imposed was not excessive (see People v Elhadi, 304 AD2d 982[2003]; People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review (see CPL470.05 [2]) and, in any event, without merit. Dillon, J.P., Eng, and Sgroi, JJ., concur.
Miller, J., dissents and votes to remit the matter to the Supreme Court, Queens County, tohear and report on that branch of the defendant's omnibus motion which was to suppress physicalevidence, and to hold the appeal in abeyance in the interim, with the following memorandum: Irespectfully dissent.
The defendant was observed by police officers walking down the street, adjusting thewaistband of his pants. The police stopped their car and approached the defendant, displayingtheir [*3]shields and identifying themselves as police. Thedefendant allegedly ran into the backyard of a private residence and, while being pursued bypolice, discarded a firearm.
The defendant was charged with, inter alia, criminal possession of a weapon in the seconddegree. His assigned 18-B counsel moved, among other things, to suppress the weapon allegedlyrecovered by the police on the date of the defendant's arrest. Assigned counsel submitted anaffirmation in support of the motion.
In what can only be described as a mistake, the affidavit consisted of arguments addressed toa different case involving a separate set of facts and distinct legal issues. Assigned counsel statedthe following in support of the motion:
"at the time and place of the occurrence, the defendant was seated in an automobile. Thepolice, wholly without probable cause and without consent, approached the automobile andforcibly removed Mr. Clermont. When Mr. Clermont was removed from the car, a gun fell out ofthe car and onto the ground.
"The police grabbed Mr. Clermont, dragged him along the ground, and placed him inhandcuffs . . .
"The firearm that fell from the automobile in which Mr. Clermont was seated was seizedwithout probable cause, in violation of the Fourth Amendment of the United States Constitution,and the Constitution and laws of this State.
"The defense therefore requests that the property seized from Mr. Clermont be suppressed, orin the alternative, that a hearing be granted."
Assigned counsel also noted that he was "presently unaware of many of the relevant factsnecessary to [his] preparation of the defense in this matter" and requested the opportunity tosubmit a memorandum of law after the suppression hearing.
The People opposed the defendant's motion and submitted an affirmation in which theycontended that the defendant failed to allege specific facts in his motion papers warrantingsuppression. The People also advanced legal arguments relevant to the facts of the case.
Prior to the date of the suppression hearing, assigned counsel moved to be relieved as thedefendant's attorney. In his affirmation submitted in support of his application, he stated that hisassociate had unexpectedly resigned and that he was left with "an overwhelming amount ofwork." Assigned counsel affirmed that he did not have "sufficient time and/or resources tocompetently represent all of [his] . . . cases."
On the date of the suppression hearing, assigned counsel initially reminded the SupremeCourt of his pending application to be relieved as the defendant's attorney, reiterating his reasonsfor the application. The Supreme Court asked if he could "do the hearing today and get the caseto a trial posture." Assigned counsel agreed and the suppression hearing was conducted withoutfurther inquiry.
Assigned counsel declined the opportunity to make an opening statement. The Peoplepresented one police witness who testified about how he came to recover the weapon. He statedthat he had approached the defendant after observing him adjust his waistband. When heidentified himself as a police officer, the defendant ran into the backyard of a private residence.The police [*4]officer, a detective, pursued the defendant. Thedetective testified that, during the course of the chase, he saw the defendant throw an object thatwas later recovered and identified as a handgun. Assigned counsel cross-examined the detective.The defendant presented no witnesses.
At the close of the evidence, assigned counsel chose to "rely on the record," declining theopportunity to make a legal argument or to otherwise make any closing statement. Assignedcounsel did not ask for leave to serve a supplemental memorandum as he had requested in hismotion papers, and no such memorandum was ever provided. After the prosecutor also elected torely on the record, and, presumably, the legal argument presented in the opposition papers, theSupreme Court denied that branch of the defendant's motion which was to suppress the weaponallegedly recovered by the police. The Supreme Court stated that it would issue a written orderdeciding the motion and then proceeded to grant assigned counsel's application to be relieved asthe defendant's attorney. Thereafter, the Supreme Court assigned the defendant a new attorney torepresent him at the trial.
In its written order, the Supreme Court's factual findings deviated materially from the onlyversion of the events related at the hearing. The Supreme Court stated that the defendant droppedthe weapon before the chase began even though the People's sole witness clearly testified that thedefendant allegedly threw the weapon after a significant period of police pursuit. The SupremeCourt concluded that "[o]nce the detective observed the defendant throw the gun on the groundhe was justified in chasing the defendant and subsequently arresting him and recovering the gun."The Supreme Court was never apprised of its apparent factual error and never asked to reconsiderits decision in light of the actual testimony adduced at the suppression hearing.
An "essential ingredient in our system of criminal jurisprudence, rooted deeply in ourconcept of a fair trial within the adversarial context" (People v Felder, 47 NY2d 287,295-297 [1979]) is the right to the assistance of counsel guaranteed under both the Federal andState Constitutions (see US Const Amend VI; NY Const, art I, § 6; People v Turner, 5 NY3d 476, 479[2005]; People v Benevento, 91 NY2d 708, 711 [1998]). Under the federal standard forineffective assistance of counsel, a defendant must show that his or her attorney's performancefell below an objective standard of reasonableness, and that "there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent" (Strickland v Washington, 466 US 668, 694 [1984]). Under the state standard,the constitutional requirements for the effective assistance of counsel "are met when the defenseattorney provides meaningful representation" (People v Stultz, 2 NY3d 277, 279 [2004] [internal quotation marksomitted]; see People v Baldi, 54 NY2d 137 [1981]). The state standard has been called"somewhat more favorable to defendants" (People v Turner, 5 NY3d at 480), because its"prejudice component focuses on the fairness of the process as a whole rather than its particularimpact on the outcome of the case" (People v Caban, 5 NY3d 143, 156 [2005] [internal quotation marksomitted]; see People v Ozuna, 7NY3d 913, 915 [2006]; see also Rosario v Ercole, 601 F3d 118, 124-125 [2010],cert denied 563 US —, 131 S Ct 2901 [2011]).
A defendant's constitutional right to the effective assistance of counsel must be safeguarded"at every stage of a criminal proceeding" (People v Ross, 67 NY2d 321, 324 [1986]; see People v Wardlaw, 6 NY3d556, 562 [2006, Ciparick, J., dissenting]; People v Cunningham, 49 NY2d 203, 207[1980]; see also Coleman v Alabama, 399 US 1, 9-10 [1970]). Effective assistance ofcounsel at a suppression hearing is of great significance since the denial of a motion to suppressevidence is "a crucial step in a criminal prosecution" and "it may often spell the differencebetween conviction or acquittal, for the evidence seized may constitute the principal, if not theonly, means of establishing the defendant's guilt" (People v Lombardi, 18 AD2d 177, 180[1963], affd 13 NY2d 1014 [1963]; see People v Anderson, 16 NY2d 282, 287[1965]; People v Jones, 145 AD2d 648, 650 [1988, Lawrence, J., dissenting]).
"[T]he right of a defendant to be represented by an attorney means more than just having aperson with a law degree nominally represent him upon a trial and ask questions" (People vBennett, 29 NY2d 462, 466 [1972]; see People v Medina, 44 NY2d 199, 207 [1978];People v LaBree, 34 NY2d 257, 260 [1974]; see also Powell v Alabama, 287 US45, 58 [1932]). "[T]he right to effective representation includes the right to assistance by anattorney who has taken the time to review and prepare both the law and the facts relevant to thedefense . . . and who is familiar with, and able to employ . . . basic[*5]principles of criminal law and procedure" (People vDroz, 39 NY2d 457, 462 [1976]).
Under no standard of "meaningful representation" was the defendant here provided with theassistance required by either the Federal or State Constitutions. Assigned counsel's writtenmotion was based on the wrong facts and he admitted that he was unable to adequately prepare.Although counsel acknowledged that the submission of post-hearing arguments was necessary,such submissions were never presented to the hearing court. This failure was all the moresignificant in light of the written decision of the hearing court, which was based on inexplicablefactual findings unquestionably more prejudicial to the defendant than the actual hearingtestimony. Although the hearing court's decision was premised on an incorrect version of theunderlying facts, this flawed premise was never questioned, and the defendant's motion tosuppress was never decided on the facts actually adduced at the hearing. Given the circumstancespresent here, I conclude that the defendant was not provided with "meaningful representation" atthe suppression hearing (People v Benevento, 91 NY2d at 712; see People v Johnson, 37 AD3d363, 364 [2007]; People v Vega, 276 AD2d 414, 414 [2000]).
Contrary to the People's contention, the shortcomings cited by the defendant cannot bejustified by any "strategic or other legitimate explanations" (People v Rivera, 71 NY2d705, 709 [1988]; see People vMiller, 63 AD3d 1186, 1188 [2009]; People v Noll, 24 AD3d 688, 688-689 [2005]; People v Miller, 11 AD3d 729,730 [2004]; People v Winston, 134 AD2d 546, 547 [1987]). Assigned counsel made thedecision to seek suppression (cf. People v Garcia, 75 NY2d 973, 974 [1990]; Peoplev Noll, 24 AD3d at 688-689), and there was no advantage to be gained by refraining fromadvancing any legal position on behalf of his client or by refusing to alert the hearing court to thefactual errors in its written decision (see People v Turner, 5 NY3d at 485; People v Georgiou, 38 AD3d 155,160 [2007]; cf. People v Fisher, 18NY3d 964 [2012]). Assigned counsel did not choose between applicable legal tactics (cf. People v Quinones, 12 NY3d116, 121-122 [2009], cert denied 558 US —, 130 S Ct 104 [2009]) or make anisolated error in the midst of otherwise competent representation. Rather, he abdicated his"overarching duty to advocate the defendant's cause" (Strickland v Washington, 466 USat 688). Inasmuch as "there has been a total failure to present the cause of the accused in anyfundamental respect," I cannot say that the representation the defendant received was effective ormeaningful in any sense of those words (People v LaBree, 34 NY2d at 260 [internalquotation marks omitted]; see People v Droz, 39 NY2d at 462).
To say that assigned counsel was justified in his complete failure to advocate his client'scause because his client had little or no chance of success would be tantamount to a harmlesserror analysis (cf. People vWardlaw, 6 NY3d 556 [2006]). Assigned counsel's overall failure to advocate on hisclient's behalf before, during, and after the suppression hearing shows the absence of meaningfuladversarial representation (cf. Matter of Jeffrey V., 82 NY2d 121, 126 [1993]). In light ofsuch deficiencies, it is not possible to predict the outcome of the suppression hearing from areview of the record, for, as it has been recognized in another context, review by this Court is nosubstitute for the single-minded advocacy of counsel (see People v Casiano, 67 NY2d906, 907 [1986]). Moreover, without meaningful representation, any conclusions drawn from therecord are speculative (accord People v Hodge, 53 NY2d 313, 320-321 [1981]; seealso People v Wicks, 76 NY2d 128, 132 [1990]; People v Felder, 47 NY2d at 296).
Under the circumstances, including the paramount importance of the admissibility of theweapon to the People's case (cf. Peoplev Wardlaw, 6 NY3d 556 [2006]), I would remit this matter to the Supreme Court,Queens County, to hear and report on that branch of the defendant's omnibus motion which wasto suppress physical evidence, and hold the appeal in abeyance in the interim (see People vCarracedo, 89 NY2d 1059, 1062 [1997]; People v Slaughter, 78 NY2d 485, 493[1991]; People v Johnson, 37 AD3d at 364; People v Jones, 145 AD2d 648, 650[1988]; People v Speller, 133 AD2d 865 [1987]; cf. People v Noll, 24 AD3d at688-689).