| People v Barber |
| 2015 NY Slip Op 00058 [124 AD3d 1312] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarkus J. Barber, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered October 26, 2009. The judgment convicted defendant, upon his plea of guilty,of murder in the second degree and criminal possession of a weapon in the second degree(two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, the motion to suppress defendant's statements to the police isgranted and the matter is remitted to Monroe County Court for further proceedings on theindictment in accordance with the following memorandum: Defendant appeals from ajudgment convicting him, upon his plea of guilty, of murder in the second degree (PenalLaw § 125.25 [1]) and two counts of criminal possession of a weapon in thesecond degree (§ 265.03 [3]). We note at the outset that, as the Peoplecorrectly concede, defendant did not waive his right to appeal.
We agree with defendant that County Court erred in denying his motion to suppressthe statements he made to the police after he had invoked his right to counsel. "Whether aparticular request [for counsel] is or is not unequivocal is a mixed question of law andfact that must be determined with reference to the circumstances surrounding the requestincluding the defendant's demeanor [and] manner of expression[,] and the particularwords found to have been used by the defendant" (People v Glover, 87 NY2d838, 839 [1995]). Here, the testimony at the suppression hearing established that, beforedefendant was informed of his Miranda rights at the police station, defendantasked a police officer to retrieve the telephone number of defendant's attorney fromdefendant's wallet. The hearing testimony further established that an investigatoracknowledged defendant's request but asked defendant to continue speaking with thepolice. That testimony was confirmed by a videotaped interview submitted at the hearingas an exhibit. " '[V]iewed in context of the totality of circumstances, particularlywith respect to events following [defendant's request for his attorney's phonenumber]' " (People vTwillie, 28 AD3d 1236, 1237 [2006], lv denied 7 NY3d 795 [2006]), weconclude that defendant unequivocally invoked his right to counsel and that hisstatements should have been suppressed (see People v Porter, 9 NY3d 966, 967 [2007]; People vEsposito, 68 NY2d 961, 962 [1986]). We therefore reverse the judgment ofconviction, vacate the plea and grant defendant's suppression motion, and we remit thematter to County Court for further proceedings on the indictment.
Defendant further contends that the court should have suppressed the gun found onhis person at the time of his arrest because it was obtained as the product of an unlawfuldetention. That contention is not preserved for our review because defendant failed tomove to suppress such evidence (see People v Price, 112 AD3d 1345, 1345-1346 [2013]; People v Watson, 90 AD3d1666, 1667 [2011], lv denied 19 NY3d 868 [2012]). We agree withdefendant, however, that he was denied effective assistance of counsel based on defensecounsel's errors with respect to suppression (see generally People v Hobot, 84NY2d 1021, 1022 [1995]). We note that defense counsel moved to suppress evidenceseized from defendant's residence although there was no indication that any evidence wasseized therefrom but failed to move to suppress the gun found on defendant's [*2]person. The record establishes that defendant was arrestedafter a police officer observed defendant and three other individuals standing"approximately 8-10 houses away" from the location of reported gunfire. According to apolice report, "[f]or officer safety purposes, [the officer] ordered [defendant and the otherthree individuals] to the ground and they were taken into custody," and a police officerfound defendant in possession of a loaded weapon. There is no indication in the recordon appeal that the police had a founded suspicion that defendant and his companionswere the source of the gunfire or were involved in any other criminal activity (cf.People v Hightower, 261 AD2d 871, 871 [1999], lv denied 93 NY2d 971[1999]). On the record before us, we conclude that there are no strategic reasons formoving to suppress evidence that did not exist while failing to move to suppress a gunthat was seized from defendant's person and that was the factual basis for the charges inthe indictment (see generally People v Benevento, 91 NY2d 708, 712-714[1998]). We further conclude that defense counsel's errors prejudiced defendant anddeprived him of the right to effective assistance of counsel (see generally Hobot,84 NY2d at 1022). We therefore direct that the further proceedings on remittal shouldinclude a motion to suppress physical evidence if appropriate (see generally People vMezon, 80 NY2d 155, 160 [1992]). In light of our determination, we do not addressdefendant's remaining contentions. Present—Centra, J.P., Fahey, Carni, Sconiersand Valentino, JJ.