INEFFECTIVE ASSISTANCE OF COUNSEL
Failure to Move to Suppress Evidence
The Fourth Department split on whether the failure to move to suppress evidence based upon the arguable invalidity of a vehicle stop constituted ineffective assistance. The majority held it did not, finding it was not a "colorable" motion. The term "colorable" is defined in Black's Law Dictionary as "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 fair probability or a likelihood, but not a certitude, of success on the merits." Failure to make a "colorable" motion to suppress, therefore, would constitute ineffective assistance.
Defendant's Attorney Not Ineffective for Failing to Make a Motion to Suppress---Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent
The Fourth Department, over a two-justice dissent, determined that defendant's attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop. The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop. The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:
We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is "whether the motion at issue had more than little or no chance of success." It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success' " ... . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court 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 is whether defense counsel failed to file a "colorable" motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so ... . Although neither the Court of Appeals nor the Appellate Division has defined "colorable" in this context, the term is elsewhere defined as "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 fair probability or a likelihood, but not a certitude, of success on the merits' " ... . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15
Failure to move to suppress evidence (which was the fruit of unfounded questioning of the defendant by police after a traffic stop) constituted ineffective assistance.
Failure to Make a Motion to Suppress Constituted Ineffective Assistance
The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed. The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:
In a supporting deposition, a police officer stated that he stopped defendant's vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him "if he had anything illegal on him," and defendant responded that he had "coke" in his pocket. The officer then searched defendant's pocket and retrieved what was later determined to be cocaine.
We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence ... . The officer's question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot ... . Defendant's nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot ... . We further conclude that defendant's contention survives his guilty plea inasmuch as defense counsel's error infected the plea bargaining process ... . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15
FAILURE TO ZEALOUSLY ACT IN DEFENDANT'S BEST INTERESTS DURING TRIAL
Defense counsel's elicitation of testimony precluded by the court (presumably testimony unfavorable to the defendant) and reference to the defendant as a "drug dealer" in summation constituted ineffective assistance.
Defendant's Counsel Ineffective
The Fourth Department reversed defendant's conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:
We ... agree ... that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel's elicitation of testimony that had been precluded by the court's pretrial ruling and defense counsel's characterization of defendant as a "drug dealer" on summation ... . Although "[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness" ... , here defense counsel's failures were "so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby" ... . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15
TAKING A POSITION ADVERSE TO THE CLIENT'S
"At sentencing, assigned counsel stated that the defendant's plea was validly entered, and denied certain factual allegations raised by the defendant.
The defendant's right to counsel was adversely affected when his attorney took a position adverse to his ... . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion ...".
Defendant's Counsel Took a Position Adverse to Defendant's Motion to Vacate His Guilty Plea---Court Should Have Appointed New Counsel Before Hearing the Motion
The Second Department determined defendant should be appointed new counsel because his original counsel took a position adverse to the defendant's motion to withdraw his guilty plea:
Prior to the imposition of sentence upon the defendant's conviction of criminal possession of a controlled substance in the seventh degree, the defendant moved to withdraw his plea of guilty to that charge on the ground that his plea was not knowingly, intelligently, and voluntarily made. At sentencing, assigned counsel stated that the defendant's plea was validly entered, and denied certain factual allegations raised by the defendant.
The defendant's right to counsel was adversely affected when his attorney took a position adverse to his ... . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion ... . People v Armstead,2015 NY Slip Op 01956, 2nd Dept 3-11-15
"It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea... . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client ..., make remarks that affirmatively undermine a defendant's arguments ..., or otherwise take a position that is adverse to the defendant ...".
Defense Counsel Took a Position Adverse to the Defendant's---Sentence Vacated
The Third Department determined the defendant's sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant's motion to withdraw his plea:
"It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea"... . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client ..., make remarks that "affirmatively undermine" a defendant's arguments ..., or otherwise "take a position that is adverse to the defendant" ... . Here, when asked to respond to defendant's pro se motion, counsel advised that, in his opinion, "[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea" and that there was no way that he could see that defendant "pleaded without knowing what he was pleading to." In our view, because counsel's opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant ... . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15
FAILURE TO ADMINISTER THE "OATH OF TRUTHFULNESS" TO POTENTIAL JURORS IS A FUNDAMENTAL ERROR BUT NOT A "MODE OF PROCEEDINGS" ERROR---THEREFORE IT IS NOT APPEALABLE UNLESS PRESERVED BY OBJECTION
Although a "Fundamental" Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a "Mode of Proceedings" Error
The Third Department determined that defendant was not entitled to reversal based on the trial judge's failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a)) because the error, although fundamental, was not preserved for appeal by objection. It was not a "mode of proceedings" error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15