| People v Medina-Gonzalez |
| 2014 NY Slip Op 02531 [116 AD3d 519] |
| April 15, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Franklin Medina-Gonzalez,Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Catherine M. Reno of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Analisa Torres, J.), rendered June 29,2009, as amended July 17, 2009, convicting defendant, after a jury trial, of criminalpossession of a controlled substance in the second and third degrees, criminally usingdrug paraphernalia in the second degree and unlawful possession of marijuana, andsentencing him to an aggregate term of six years, with five years' postrelease supervision,affirmed.
Defendant contends he was deprived of effective assistance of counsel under thestate and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; Strickland v Washington, 466 US 668 [1984]) when his attorney did notmove during trial to reopen a suppression hearing based on new evidence, belatedlydisclosed by the prosecution, that the attorney used in an effort to discredit the arrestingofficer's testimony at trial. The new evidence consisted of photographs of the cardefendant was driving when stopped by the police; the photographs arguablycontradicted the police testimony that the windows were highly tinted in violation of theVehicle and Traffic Law. Instead, counsel did not raise the issue until he moved to setaside the verdict pursuant to CPL 330.30 (1).
In its decision denying defendant's motion to set aside the verdict, the trial courtstated that the photos "contradict the officer's description of both vehicles, and castserious doubt on his credibility." It further indicated that "[t]he potential impeachmentvalue of the photographs [was] obvious and the prosecution erred in not disclosing thembeforehand." Nevertheless, the court denied the motion because the issue should havebeen raised by a motion during trial to reopen the suppression hearing. The courtindicated that had counsel so moved, it "would have granted the application and re[]opened the hearing." Although there had not yet been any record made as to whycounsel failed to do so, the court concluded that "[d]efendant waived his right to ahearing on these issues, when he made the strategic decision not to move to re[ ]open thehearing or seek any other remedy at the time he found out about the pictures." The court'scharacterization of defense counsel's failure to ask the court to reopen the suppressionhearing as a "strategic decision" was not based on anything appearing in the then-existingrecord. Indeed, it is unclear how the court could conclude at that juncture that thisoversight was a conscious decision at all, let alone strategic. It was only when the casecame on for sentencing, after the court's decision finding that the issue had beenstrategically waived, that counsel stated, for the [*2]firsttime, "there was a strategy in not" moving to reopen the hearing because he wasconcerned he would "lose that jury" and the witness "was on the ropes" and therefore thejury would acquit defendant.
The issue of effective assistance of counsel is generally not reviewable on directappeal, because it involves facts dehors the record, such as trial counsel's strategy (People v Reyes, 84 AD3d426 [1st Dept 2011], lv denied 18 NY3d 927 [2012]). Accordingly, adefendant who seeks to bring an ineffective assistance of counsel claim usually must firstexpand the record by way of a CPL 440.10 motion before this Court can consider it(People v Cosby, 271 AD2d 353, 354 [1st Dept 2000], lv denied 95NY2d 904 [2000]). However, there are rare instances where the full record is sufficientto resolve the issue of counsel's effectiveness without a 440.10 motion (see e.g.People v Brown, 45 NY2d 852 [1978]). This is not one of those rare cases.
In Brown, the Court of Appeals held that on that case's record it was "beyondcavil" that defense counsel was ineffective "throughout the prosecution" (45 NY2d at853). However, it went on to state, "in the typical case it would be better, and in somecases essential, that an appellate attack on the effectiveness of counsel be bottomed on anevidentiary exploration by collateral or post-conviction proceeding brought under CPL440.10" (id. at 853-854).
Here, the record is ambiguous and it is not "beyond cavil" that counsel wasineffective or effective. The extant record potentially supports a finding that counselfundamentally misunderstood the necessity of making the motion to reopen thesuppression hearing during trial, rather than waiting for a motion to set aside the verdict,in the event of a conviction. Defense counsel's remarks at sentencing, seeminglyprompted by the court's denial of the motion to set aside the verdict, were a belatedattempt to explain counsel's failure to move to reopen the hearing. Whether defensecounsel was effective or not necessarily requires an evaluation of the credibility and logicof the proffered explanation, that defense counsel was afraid he would "lose that jury"and that he believed the witness "was on the ropes." Although defense counsel may havegenuinely been hopeful that the jury would acquit his client, this explanation cannot beaccepted at face value. After all, as the trial court's decision indicates, had defensecounsel timely moved to reopen the suppression hearing, the application would havebeen granted, and the court could have quickly ruled upon it while giving the jury a shortrecess. The "witness" referred to was the arresting officer, and was available. On theother hand, there may have been legitimate concerns about the jury undeveloped on thisrecord. In short, we cannot decide on the extant record whether defense counsel's failureto move to reopen the hearing was truly "strategic."
Given that the existing record does not permit meaningful review of defensecounsel's representation, we are compelled to affirm the conviction without prejudice tofurther proceedings in the trial court pursuant to CPL 440.10. Concur—Sweeny,Manzanet-Daniels, Feinman and Clark, JJ.
Tom, J.P., concurs in part in a memorandum as follows: I respectfully disagree withthe majority and conclude that the record clearly shows that defendant was not deprivedof the effective assistance of counsel as a result of his trial counsel's strategic decisionnot to move to reopen the suppression hearing. Therefore, contrary to the majority'sposition, the affirmance of the judgment of conviction should be with prejudice.
Police Officer Angel Rivera testified that on August 24, 2007, at approximately 1:50[*3]p.m., while on patrol in a marked police vehicle, hepulled over a Honda Accord in the Bronx because the vehicle had "highly tintedwindows." The driver, defendant, lowered his window and Rivera detected the odor ofmarijuana coming from the Accord and saw what appeared to be a beer can in the frontcup holder. Rivera also saw that defendant had watery, bloodshot eyes and smelled ofalcohol. Defendant stated that he had been drinking, and Rivera ordered him out of thevehicle. Defendant got out, swayed a bit, and regained his balance by holding onto thedriver's side door.
Rivera then arrested defendant and placed him in the rear of the patrol car. On theway to the precinct, Rivera noticed defendant moving around in the back seat. When theyarrived at the precinct, Rivera observed a clear plastic bag of white powder on the floorof the vehicle, near defendant's feet. Rivera stated that he had searched his vehicle thatmorning, and that there was nothing in the vehicle at that time. In an inventory search ofthe Accord, Rivera recovered the can of beer, three plastic bags of marijuana and a"sports bottle" of liquor. Rivera also found a brown bag containing small ziplock bagsand a small notebook containing "names and dollar amounts."
Defendant was subsequently charged with criminal possession of a controlledsubstance in the second degree, criminal possession of a controlled substance in the thirddegree, criminal use of drug paraphernalia in the second degree, operating a motorvehicle while under the influence of alcohol/drugs, and unlawful possession ofmarijuana.
The court denied defendant's motion to suppress, finding that Rivera, "[d]uringtraining," had learned that if "he cannot see the driver" of a vehicle, the "windows areexcessively tinted," and therefore illegal. Accordingly, the court concluded the stop waslawful, because the tint gave the officer probable cause to believe the windowsrepresented an infraction. The court also found that Rivera's observations after stoppingthe vehicle, including the smell of marijuana, the odor of alcohol, defendant's bloodshoteyes and unsteady gait, gave him probable cause to arrest defendant, making the searchof the car lawful.
At trial, Rivera offered testimony that was very similar to the testimony he providedat the suppression hearing. During Rivera's cross-examination, defense counsel entered aseries of photographs into evidence. Rivera identified the photographs as being of the cardefendant was driving at the time of his arrest. Rivera acknowledged that thephotographs showed that the driver's side front seat could be seen clearly through thedriver's side front window, placing his credibility in issue. Contrary to the photographicevidence, Rivera continued to state that there was excessive tint on the vehicle's window.
The jury convicted defendant of all counts charged, except for driving while hisability was impaired.
By notice of motion pursuant to CPL 330.30 (1), defendant sought to set aside theverdict. Defendant argued that prior to the suppression hearing, the People had failed toprovide him with any of the photographs of the Accord and maintained that thephotographs contradicted Rivera's testimony, in that the front seats were clearly visiblethrough the windows. Defendant argued that the withholding of the photographicevidence was clearly a Brady violation. Defendant asserted that if the stop wasbased solely on the tint and not another violation, the invalidity of the tint stop wouldrender the resulting arrest and discovery of the contraband subject to suppression as"fruit of the poisonous tree."
The trial court denied defendant's motion, but noted that the photos of the Accordtaken from the side of the vehicle "[c]learly depicted . . . the entire driver'sseat, the console, and a [*4]portion of the front passengerseat." The court stated that "[n]ot only are the contours of the undulating seat cushionwell defined, but minute details, such as tiny wrinkles in the upholstery, are plainlyvisible." The court concluded that the photos "contradict[ed] the officer's description ofboth vehicles and cast serious doubt on his credibility." The court stated that "[t]hepotential impeachment value of the photographs" was "obvious" and that the"prosecution erred in not disclosing them beforehand." Notwithstanding this finding, thecourt denied the CPL 330.30 (1) motion on the ground that the issue should have beenraised by a motion to reopen the hearing. The court stated that had defendant chosen"that path," it "would have granted the application and re-opened the hearing." The courtstated that instead, "defendant decided to introduce the photos at trial for considerationby the jury" and that "[d]efendant waived his right to a hearing on these issues when hemade the strategic decision not to move to re-open the hearing or seek any other remedyat the time he found out about the pictures."
The sole contention advanced by defendant on this appeal is that he was deprived ofeffective assistance of counsel due to his attorney's failure to interpose a motion toreopen the suppression hearing (CPL 710.40 [4]) when confronted with photographicevidence undisclosed by the People until trial. Instead, counsel made a motion to setaside the verdict (CPL 330.30), which the court denied on the ground that, in failing topursue a trial remedy, defendant waived his right to a hearing on the issue (citingPeople v Brown, 67 NY2d 555, 559 [1986], cert denied 479 US 1093[1987]).
On the record before us, defendant was not deprived of effective assistance ofcounsel under the state and federal standards (see People v Benevento, 91 NY2d708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]), and thestrategy pursued by counsel was within "the wide range of professionally competentassistance" (Strickland, 466 US at 690). Furthermore, in proving counsel to beineffective, the defendant must demonstrate the absence of strategic or other legitimateexplanations for counsel's alleged shortcomings (People v Rivera, 71 NY2d 705,709 [1988]).
It is apparent that the circumstance about which defendant complains on appeal is amatter of trial strategy (see People v Brown, 28 NY2d 282, 287 [1971]), not aproduct of counsel's incompetence. The sentencing minutes support counsel's statementthat in denying the CPL 330.30 motion, the trial court had correctly noted that "there wasa strategy in not raising it during the trial." Significantly, at defendant's sentencing,defense counsel remarked on the record that "with respect to the . . . 330.30motion which was made subsequent to the verdict in this case, as your Honor noted, therewas a strategy in not raising it during the trial" and that counsel was "afraid that" hewould "lose th[e] jury" (i.e., need a new panel), and that "frankly" the witness "was onthe ropes" and he thought the jury "would not believe him."
Indeed, defense counsel's strategy for discrediting Rivera was on display throughoutthe trial. First, in defense counsel's opening statement, he said that there were "a numberof versions" of what occurred that day offered by Rivera: "[w]hat he said in his initialpaperwork, what he says later on, and . . . what he now says at trial."Counsel told the jury that it would see photographs of the vehicle representing what theHonda "actually looked like" at the time of the incident. Counsel proceeded to thenattempt to convince the jury, during his cross-examination of Rivera, that the officer'stestimony was at odds with the appearance of the vehicle in the photographs. He alsoconfronted Rivera with the inconsistencies in his testimony and paperwork. Onsummation, counsel launched a concerted attack on the officer's credibility by [*5]arguing that the photographs disclosed no more tint on thewindows of defendant's vehicle than on the windows of the officer's patrol car. Counselasserted that the reason the officer gave for stopping the vehicle was "a total fabricationon his part," that the officer's account was not "accurate" and "not . . .truthful," and that "we know now that the windows are not tinted." Thus, even in theabsence of counsel's explanation for not moving to reopen the suppression hearing, therecord is more than adequate to demonstrate "the existence of a trial strategy that mightwell have been pursued by a reasonably competent attorney" without any need to conducta separate hearing into counsel's claimed ineffectiveness as urged by the majority(People v Satterfield, 66 NY2d 796, 799 [1985]).
Counsel, in not objecting to the late submission of the photographs at trial, took hischances with the jury, and was unsuccessful. That this strategy was unsuccessful does notdemonstrate that defendant received ineffective assistance of counsel. Thus, "[i]t is not"for a court "to second-guess whether a course chosen by defendant's counsel was the besttrial strategy, or even a good one, so long as defendant was afforded meaningfulrepresentation" (Satterfield, 66 NY2d at 799-800). Here, defense counsel'sstrategy to zealously cross-examine Rivera and his efforts to discredit the officer at everypoint in the trial demonstrate that defendant was afforded meaningful representation.
Furthermore, defendant has not established a reasonable probability that a reopenedhearing would have actually led to suppression of the evidence. No testimony wasreceived concerning the circumstances under which the photographs were taken,particularly the effect of lighting conditions, and readings taken by the arresting officerwith a tint meter indicated that the windows did not provide the requisite 70% lighttransmissivity.
Accordingly, the judgment of conviction should be affirmed with prejudice.