| People v Carver |
| 2015 NY Slip Op 00046 [124 AD3d 1276] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLeroy Carver, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered April 22, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial oftwo counts of burglary in the second degree (Penal Law § 140.25 [2]),defendant contends that he was deprived of effective assistance of counsel. According todefendant, his attorney was ineffective because, among other reasons, he failed to movefor suppression of evidence obtained by the police following an allegedly unlawfularrest. We reject that contention. "To prevail on a claim of ineffective assistance ofcounsel, a defendant must demonstrate the absence of strategic or other legitimateexplanations for counsel's failure to pursue 'colorable' claims" (People v Garcia,75 NY2d 973, 974 [1990], quoting People v Rivera, 71 NY2d 705, 709 [1988];see People v Willis, 105AD3d 1397, 1397 [2013], lv denied 22 NY3d 960 [2013]; People v Carnevale, 101 AD3d1375, 1378-1379 [2012]). "A single error may qualify as ineffective assistance, butonly when the error is sufficiently egregious and prejudicial as to compromise adefendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]; see People v Atkins, 107 AD3d1465, 1465 [2013], lv denied 21 NY3d 1040 [2013]).
Here, the evidence adduced at trial demonstrates that, at approximately 4:30 on themorning in question, defendant was the front seat passenger in a vehicle that was stoppedin the Village of Fairport by a police officer who observed an object hanging from thevehicle's rear view mirror, in violation of the Vehicle and Traffic Law. The only otherperson in the vehicle with defendant was the driver. Neither defendant nor hiscompanion could produce any identification, and both gave the officer what turned out tobe false names, dates of birth and addresses. The officer noticed that the two menappeared to be "very nervous and anxious," and he observed in the back seat severallarge duffel bags, black gloves and a laptop computer. When asked what they were doingin the area, the men said that they had been sitting in the parking lot of a nearby bar sinceit closed several hours earlier. The officer had been patrolling the village for hours,however, and knew that the parking lot had been empty since 2:30 a.m.
The officer told the men to remain in the vehicle while he returned to his patrolvehicle to run a records check. When the officer entered the police vehicle, the driverfled on foot. The officer then ran back to the vehicle, where he observed that defendanthad removed his seat belt and was attempting to exit the vehicle. The officer detaineddefendant and conducted a pat frisk, during which the officer found a digital camera anda tube of lip balm in the coat defendant was wearing. Upon looking inside the vehicle,the officer observed a wallet, a second pair of black gloves and a long screwdriver, all ofwhich were on the floor in front of where defendant had been seated. While defendantwas detained, the police searched unsuccessfully for the driver, but learned that twohouses in Fairport had recently been burglarized. It was later determined that [*2]the digital camera and lip balm found in defendant's coatwere taken from the homes that had been burglarized, as was the wallet found in thevehicle. A search of the vehicle yielded numerous other items of stolen property. Whileat the police station, the police took defendant's DNA from a discarded cigarette, andthen later compared his DNA to that on the gloves found in the front seat area of thevehicle. The tests showed that defendant could not be excluded as the person who worethe gloves, and that it was highly unlikely that someone other than defendant contributedto the DNA found on the gloves.
Defendant contends that his trial attorney was ineffective for failing to seeksuppression of the digital camera, the lip balm and the DNA evidence. More specifically,defendant contends that he had a colorable claim that the officer unlawfully arrested himimmediately after the driver fled, and that the evidence constitutes fruit of the poisonoustree. Defendant further contends that defense counsel had no strategic or legitimatereason for failing to pursue the suppression issue.
As a preliminary matter, we note that the record belies defendant's contention that theofficer arrested him immediately after the driver fled; rather, the record establishes thatthe officer detained defendant for investigatory purposes (see People v Roque, 99NY2d 50, 54 [2002]; People v Gonzalez, 91 NY2d 909, 910 [1998]). It is wellsettled that the police may forcibly stop and detain an individual based on reasonablesuspicion that the individual has committed or is about to commit a crime (see People v Moore, 6 NY3d496, 498-499 [2006]). Here, when he detained defendant, the officer knew that thedriver had fled, defendant and the driver had given a false answer when asked what theywere doing in the area, and neither could produce identification. The officer had alsoobserved that defendant, like the driver, attempted to exit the vehicle despite having beendirected to remain seated, and that there were several duffel bags, a laptop computer anda pair of black gloves in the back seat. The presence of gloves in the vehicle was unusualgiven that it was mid-summer. Under the circumstances, and considering the hour, it wasentirely reasonable for the officer to suspect that defendant was involved in criminalactivity, thereby justifying a detention of defendant for investigatory purposes (see People v Bolden, 109AD3d 1170, 1172 [2013], lv denied 22 NY3d 1039 [2013]). In fact, it wouldhave been unreasonable for the officer to allow the defendant to walk away, particularlyin view of the fact that he could produce no identification.
In any event, even assuming, arguendo, that defendant had a colorable basis to movefor suppression of the camera, lip balm and DNA evidence, we cannot conclude on thisrecord that defense counsel lacked a legitimate reason for failing to so move. Theremaining evidence demonstrated that defendant was in a motor vehicle containingnumerous items of property that had recently been stolen from nearby homes, and thussuch a motion would not have been dispositive. One such item was a wallet that wasfound on the floor in front of where defendant had been seated, along with a second pairof black gloves and a long screwdriver. In addition, the evidence established that the onlyother person in the vehicle with defendant fled on foot, and that defendant wasattempting to exit the vehicle as well contrary to the officer's directive.
Under the circumstances, defense counsel may legitimately have concluded that, fordefendant to be acquitted, he had to testify at trial and offer an innocent explanation forhis presence in a vehicle that was full of property that had recently been stolen fromnearby homes. Defendant did in fact take the stand at trial, testifying that he was asleep inthe vehicle while its occupants committed the burglaries without his knowledge, and thathe woke up shortly before the vehicle was stopped by the police. Notably, a defendantwho testifies at trial may be impeached with suppressed evidence (see United States vHavens, 446 US 620, 624 [1980], reh denied 448 US 911 [1980]; Peoplev Haynes, 235 AD2d 365, 365 [1997], lv denied 89 NY2d 1012 [1997];People v Dash, 126 AD2d 737, 737 [1987]). Thus, because defendant testified,the jury would have learned about his possession of the camera and the lip balm even ifdefense counsel had successfully moved for suppression of that evidence. The same istrue for the DNA evidence.
We respectfully disagree with our dissenting colleagues that the threshold standard tobe applied in determining whether an attorney was ineffective for failing to file aparticular motion is "whether the motion at issue had more than little or no chance ofsuccess." It is true, as the dissent points out, that the Court of Appeals has repeatedlystated that "[t]here can be no denial of effective assistance of trial counsel arising fromcounsel's failure to 'make a motion or argument that has little or no chance ofsuccess' " (Caban, 5 NY3d at 152, quoting People v [*3]Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]). By so stating, however, the Court was not articulating thestandard for what does constitute ineffective assistance of counsel; instead, theCourt was explaining what does not constitute ineffective assistance of counsel.As noted, the Court has made clear in other cases that the standard to be applied iswhether defense counsel failed to file a "colorable" motion and, if so, whether counselhad a strategic or legitimate reason for failing to do so (Garcia, 75 NY2d at 974;Rivera, 71 NY2d at 709). Although neither the Court of Appeals nor theAppellate Division has defined "colorable" in this context, the term is elsewhere definedas "appearing to be true, valid, or right" (Black's Law Dictionary 301 [9th ed 2009]).Federal courts have described a colorable claim as one that has " 'a fairprobability or a likelihood, but not a certitude, of success on the merits' " (SanJose Christian Coll. v City of Morgan Hill, 360 F3d 1024, 1032 [2004];see Axson-Flynn v Johnson, 356 F3d 1277, 1295 [2004]; seealso Combs v Homer-Center School Dist., 540 F3d 231, 246 [2008], cert denied555 US 1138 [2009]). Here, for the reasons previously stated, we do not believe thata motion to suppress evidence as the product of an unlawful arrest would likely havebeen granted.
Nor can we agree with the dissent that defendant on appeal contends that his trialattorney was also ineffective for failing to challenge the legality of the stop of the vehiclein which he was a passenger. Defendant's brief focuses on the legality of the arrest, notthe stop, and it repeatedly states that defendant was the passenger of a vehicle that wasstopped for a traffic infraction committed by its driver. Defendant never suggests that thedriver did not in fact commit a traffic infraction. In any event, the arrestingofficer testified at trial without contradiction that he stopped the vehicle because heobserved an item hanging from the rear-view mirror and a sticker on the frontwindshield, both of which constitute violations of the Vehicle and Traffic Law. If theofficer's testimony in that regard is true, and there is no basis in the record for us toconclude otherwise, defendant had no grounds to challenge the legality of the stop. Wenote that the dissent also asserts that, rather than moving for suppression, defense counselproceeded to trial "on the specious theory that defendant had passed out in the car andhad no idea that the people he was with shortly before the traffic stop had committed theburglaries." That theory, however, was based on defendant's sworn trial testimony, andwe cannot conclude that defense counsel was ineffective for allowing defendant toexercise his constitutional right to testify at trial.
We have considered the other alleged failings of defense counsel and conclude thatthey were not individually or collectively so significant as to deprive defendant of hisright to effective assistance of counsel. For instance, although defense counselunderstated the significance of the People's DNA evidence during his opening statement,we do not perceive how defendant was thereby significantly prejudiced. To the extentthat defendant contends that defense counsel's apparent failure to understand the natureof the DNA evidence may have affected the advice counsel gave to defendant as towhether to accept the People's plea offer, such contention is based on "matters outsidethe record on appeal and thus is properly raised by way of a motion pursuant to CPLarticle 440" (People vFrazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).In sum, although defense counsel's performance at trial was by no means flawless, "[t]hetest is reasonable competence, not perfect representation" (People v Oathout, 21 NY3d127, 128 [2013] [internal quotation marks omitted]), and viewing the evidence, thelaw and the circumstances of the case as a whole and as of the time of the representation,we conclude that defendant was afforded meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Finally, considering that defendant is a predicate felon and that Supreme Court couldhave but did not impose consecutive sentences on the two burglary counts, we perceiveno basis upon which to exercise our power to modify the concurrent sentences as amatter of discretion in the interest of justice (see CPL 470.15 [6] [b]).
All concur except Fahey and Whalen, JJ., who dissent and vote to reverse inaccordance with the following memorandum: Inasmuch as defendant contends that hereceived ineffective assistance of counsel under both the federal and state standards, weapply the state standard for ineffective assistance of counsel (cf. People v McDonald, 1NY3d 109, 114-115 [2003]; see generally People v Baldi, 54 NY2d 137, 147[1981]). Applying that standard here, we conclude that defendant was deprived of hisright to effective assistance of counsel, and we therefore respectfully dissent.
We first turn to the relevant facts of this case. The record establishes that defendantwas the front seat passenger in a vehicle that was stopped by a police officer atapproximately 4:30 [*4]a.m. for an alleged trafficinfraction involving an obstructed windshield. That traffic stop eventually led to a patfrisk of defendant, which revealed a digital camera in the breast pocket of defendant'scoat. The camera was the property of a Fairport resident whose home had just beenburglarized, and a subsequent search of defendant's other pockets revealed many items ofproperty stolen from two houses in Fairport that had been burglarized that morning. Thepolice also found at defendant's feet on the floorboard of the vehicle, inter alia, a walletbelonging to a burglary victim, black leather gloves, and a long screwdriver.
Defendant was subsequently arrested and charged with both burglaries. Whiledefendant was at the police station following his arrest, the police seized a cigarette buttthat defendant had smoked and discarded, and the DNA on the cigarette matched theDNA on the gloves found at defendant's feet in the vehicle. Nevertheless, defendant'strial attorney did not seek suppression of the aforementioned physical evidence. Instead,defendant proceeded to trial with his trial attorney's inexplicable misunderstanding thatthere was a "one in 66,000 chance" that defendant's DNA was on the gloves—theevidence actually showed that the probability of randomly selecting an unrelatedindividual who could be a contributor to the DNA mixtures found on the gloves was lessthan one in 4,500 for the left glove and less than one in 6,090 for the rightglove—and on the specious theory that defendant had passed out in the car andhad no idea that the people he was with shortly before the traffic stop had committed theburglaries.
We next turn to the breadth of defendant's primary contention on appeal. Defendantcontends that he was denied effective assistance of trial counsel based on, inter alia, thefailure of his trial counsel to raise a colorable suppression issue. To be sure, as themajority notes, the thrust of defendant's contention is that defense counsel wasineffective for failing to seek suppression of evidence obtained by the police followingdefendant's detention. However, as we read it, defendant's brief on appeal leaves openthe possibility that his present contention with respect to ineffective assistance of counselembraces the theory that defense counsel was ineffective in failing to seek suppression ofall of the physical evidence against defendant on the ground that it was seized asa result of an unlawful traffic stop. In that vein, we respectfully disagree with themajority that defendant has conceded that the traffic stop at issue was lawful. Althoughdefendant on appeal has acknowledged that a traffic stop based on the presence of anobject obstructing or interfering with the view of the operator of the vehicle at issuethrough the windshield would be lawful (see People v Robinson, 97 NY2d 341,349 [2001]; see also Vehicle and Traffic Law § 375 [30]), in hisappellate brief he was careful to question the impetus for the traffic stop, noting that suchstop was occasioned by what, "according to the [subject] officer," were objects thatappeared to obstruct the windshield of the vehicle at issue.
We now turn to the standard of review. The majority implicitly shuns the rule of thisCourt articulated in, inter alia, People v Bassett (55 AD3d 1434, 1437-1438 [2008], lvdenied 11 NY3d 922 [2009]) that, to prevail on a claim for ineffective assistance ofcounsel based on the failure to make a motion, a " 'defendant must show that theparticular motion, if made, would have been successful and that defense counsel's failureto make that motion deprived him [or her] of meaningful representation.' " Weexplicitly reject it here. In our view, the rule articulated in Bassett and itsantecedent and descendent cases is rooted in People v Torrence (135 AD2d 1075,1076 [1987], lv denied 70 NY2d 1011 [1988]), wherein we rejected thedefendant's contention that he was denied effective assistance of counsel, reasoning that"a dismissal motion on speedy trial grounds, if made, would not have been successful."That conclusion—essentially that the defendant was not denied meaningfulrepresentation because the motion in question would have failed—is consistentwith what is now the prevailing view that an attorney's "failure to 'make a motion orargument that has little or no chance of success' " does not amount to ineffectiveassistance (People v Caban,5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]).
Bassett, however, stakes a more extreme position. The circumstances inwhich counsel will not be ineffective for failing make a motion have been setforth by the Court of Appeals, i.e., where the motion has little or no chance of success(see Caban, 5 NY3d at 152), and where there is a "strategic or other legitimateexplanation[ ] for counsel's failure to [make] a particular [motion]" (People vRivera, 71 NY2d 705, 709 [1988]). In our view, Bassett mandates that ashowing of success is essential to succeed on a claim for ineffective assistance based oncounsel's failure to make a motion. That analytical approach is incompatible with NewYork's existing jurisprudence, and we therefore would no longer follow those cases thatadopt that approach. [*5]Rather, we conclude that theappropriate litmus test here is whether the motion at issue had more than little or nochance of success and, if so, whether there is no strategic or other legitimate explanationfor the failure to bring that motion (see Caban, 5 NY3d at 152; Rivera, 71NY2d at 709; cf. People vClermont, 22 NY3d 931, 934 [2013]; People v McGee, 20 NY3d 513, 520 [2013]; see generally People vCarnevale, 101 AD3d 1375, 1380-1381 [2012]).
Applying that standard here, we conclude that defendant was denied effectiveassistance of counsel based on his counsel's failure to seek suppression of the evidenceseized as a result of the alleged traffic infraction. We note that the officer whoeffectuated the traffic stop allegedly observed the items giving rise to the alleged vehicleand traffic infractions while the vehicle in which defendant was a passenger was movingand under the cloak of darkness. Given the totality of the circumstances here, weconclude that the motion had more than little or no chance of success (cf.Carnevale, 101 AD3d at 1379 n 2).
We also conclude that there is no strategic reason or other legitimate explanation forthe failure of defendant's trial attorney to seek suppression of the physical evidenceseized from defendant's person and from the vehicle at issue. As a practical matter, underthe circumstances of this case there was simply no reason to forego the suppressionhearing inasmuch as it would have allowed defendant an opportunity to examine theofficer who effectuated the traffic stop before trial and to bolt that officer to a narrativeof the traffic stop and the police activity that ensued as a result of that stop. Moreimportantly, a "suppression motion could have been dispositive of the entire proceeding"(Clermont, 22 NY3d at 934), because it is hard to conceive of how defendantwould have been convicted of the burglaries had the physical evidence been suppressed.In that vein, we respectfully conclude that the majority's analysis of what may havehappened at trial and the theories defense counsel may have held with respect to the pathto an acquittal are immaterial inasmuch as the trial would not have occurred haddefendant prevailed upon a motion to suppress evidence seized as a result of the trafficstop on the ground that such stop was unlawful. Consequently, under the circumstancesof this case, the failure of defendant's trial attorney to challenge this evidence depriveddefendant of meaningful representation, and we would therefore reverse the judgmentand grant defendant a new trial. Present—Smith, J.P., Centra, Fahey, Lindley andWhalen, JJ.