Tagged: suppression hearing

Recent #NYCA Decisions: Ineffective Assistance of Counsel

The New York Court of Appeals has been busy on the criminal procedure front. Last month it decided several cases, including three that addressed the issue of ineffective assistance of defense counsel. In one, the court held that counsel had been ineffective in failing to move to suppress a gun. In the second and third, the Court held that counsel had not been ineffective in 1) failing to move to reopen a suppression hearing when a detective changed his testimony at trial and 2) failing to object to inflammatory and improper gender based summation comments. The Court essentially found strategic justifications for counsel’s failures, but in split decisions.

In People v. Rashid Bilal, the defendant was charged with Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), based on allegations that he possessed a gun. Without any strategic or other reason, defense counsel failed to move to suppress the gun. The Court held that defense counsel’s failure amounted to ineffective assistance and remanded for a suppression hearing. This is a fairly clear-cut case.

In People v. Roy Gray, where the defendant was charged and convicted of murder in the second degree under N.Y. Penal Law § 125.25(1), the Court reached the opposite conclusion and held that it was not ineffective assistance for the defense lawyer to decline to move to reopen a suppression hearing. Judge Stein, joined by Judge Fahey, dissented.

In Gray, the defendant had moved to suppress three statements: the first, when he had told police he was going to take the blame for the murder because his brother had spent too long in jail, and a second, in writing, after additional Miranda warnings were given, inculpating himself. Both statements were suppressed because of the failure to give adequate Miranda warnings. The People appealed and the Appellate Division reversed, finding that the written statement was admissible because it was attenuated from the initial failure to give adequate Miranda warnings.

At trial, notwithstanding the suppression of the first statement, the defense stipulated that the first statement could be admitted on the theory that it cast doubt on the truthfulness of the written confession. Then, at trial, the detective who had taken the defendant’s statements changed his testimony in a way that raised the issue whether the second statement was a continuation of the first, unlawful interrogation. That is, he testified at trial  for the first time that after the first statement he continued to talk with the defendant for an hour during which time the defendant made a second statement that inculpated him – in substance the same as the subsequent written statement. Even though this testimony would have totally undermined the Appellate Division’s reasoning that the written statement was attenuated from the initial failure to give Miranda warnings, defense counsel did not move to reopen the suppression hearing; instead, he moved to have the detective’s testimony limited to what he had testified to at the hearing – that the first statement was limited to defendant’s intention to falsely confess. The Court recognized that this was a strategic decision, intended to undermine  the impact of the second and written confession, which counsel apparently believed would not be suppressed despite the change in testimony. The Court of Appeals held that this did not constitute ineffectiveness but was instead a reasonable strategic decision.

Judge Stein, in dissent, disagreed. As he saw it, the detective’s altered trial testimony undermined the basis for the Appellate Division’s decision that the second statement was attenuated. Given that the People had stipulated they did not have enough evidence to go forward without the confessions, and given that the People agreed that the written statement “was the culmination of the prior unwarned statements,” the failure to move to reopen the suppression hearing as to the second statement, and the decision to instead rely on the first statement to cast doubt on it – constituted ineffective assistance.

The dissent also disagreed with the majority’s conclusion that defense counsel had not been ineffective in failing to move to reopen because the issue was not a “winning” suppression argument. The dissent agreed that there could be no ineffectiveness where counsel failed to make a motion that has little or no chance of success, here, where “counsel fails to raise a close suppression issue,” that is so important to the proof of his client’s guilt, ineffectiveness is established. It was undisputed that the original Miranda warnings were deficient; there was now new evidence that the police had continued to question the defendant between the first and second statements and that there was “no pronounced break” between the two. Moreover, the decision was not a reasonable strategic one because defense counsel had “nothing to lose and everything to gain” by reopening the suppression hearing. All of the defendant’s statements would have been suppressed.

Finally, in People v. Urselina King, where the main issue argued on appeal concerned whether the court had improperly discharged potential jurors on hardship grounds, the Court affirmed the burglary in the first degree and assault in the second degree convictions under N.Y. Penal Law § 140.30(3) and N.Y. Penal Law § 120.05(2) respectively. With respect to ineffective assistance, the Court held that defense counsel was not ineffective for failing to object to “inflammatory gender-based” statements in the prosecutor’s summation. The effect of the statements was that the viciousness of the attack in question meant it could only have been done by a woman and, at the same time, that the victim, a different kind of woman, was more believable because she filled the “female victim” stereotype. Although finding that this double-barreled gender stereotyping was inflammatory and irrelevant, the majority concluded that the prosecutor’s remarks “were so over the top and ridiculous that defense counsel may very well have made a strategic decision not to object…out of a reasonable belief that the jury would be alienated by the prosecutor’s boorish comments.” The Court concluded that, on the whole, defense counsel rendered effective assistance.

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NY Court of Appeals Ducks a Decision on a Troubling Mens Rea Issue

POST WRITTEN BY: Professors Peter Widulski and Bennett L. Gershman

In April 2011, a man exited a subway train at a station in Manhattan and encountered a police sergeant and two other police officers. The officers reported that the man shouted obscenities and gesticulated at them and accused them of blocking his access to a stairway to an upper platform. They further reported that the man continued to swear at them as the sergeant followed him up the stairs. The sergeant reported that his intention in following the man – subsequently identified as Richard Gonzalez – was to issue Gonzalez a summons for disorderly conduct. While following Gonzalez, the sergeant noticed the handle of what appeared to him to be a knife in Gonzalez’s back pocket. After detaining Gonzalez on suspicion of disorderly conduct, the sergeant seized the item in Gonzalez’s back pocket and determined that it was a “gravity knife” because the blade in the handle snapped and locked into place upon flicking the wrist holding the handle. Under New York’s Penal Law it is a crime to possess a “gravity knife.”

The Manhattan District Attorney’s Office indicted Mr. Gonzalez for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (1), which, in conjunction with Penal Law § 265.01 (1), subjects a defendant to third degree criminal possession of a gravity knife, a felony, if the defendant was previously convicted of a crime. Prior to trial, the defendant moved to suppress evidence of his possession of the knife on the ground that his detention for disorderly conduct was unlawful, and therefore the seizure of the knife was the fruit of the unlawful arrest. The defendant’s motion was denied, and a jury subsequently convicted him of third degree criminal possession of a weapon. He was sentenced to 3 ½ to 7 years in state prison.

On appeal, a five-judge panel of the Appellate Division, First Department, unanimously held that the facts supported probable cause to arrest the defendant for disorderly conduct. People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013). The court further unanimously held that the only mens rea element the prosecution had to prove regarding possession of a gravity knife was that the defendant knew he possessed a knife “in general,” rejecting defendant’s argument that the prosecution needed to prove that he knew the knife he possessed had the characteristics of a gravity knife.

Leave to appeal to the Court of Appeals was granted, and on April 28, 2015, the Court of Appeals heard oral arguments in the Gonzalez case at the Judicial Institute on the campus of Pace Law School. Although the parties argued both the probable cause issue and the mens rea issue, it appeared to us that the Court’s questions focused primarily on the issue of whether the prosecution needed to prove that the defendant knew that he possessed a knife with the characteristics of the prohibited “gravity knife.” And to observers, it appeared that the Court was clearly troubled by this issue. Gonzalez’s appellate counsel informed the Court of the undisputed facts that Gonzalez had purchased the knife – a “Husky” brand utility knife which he used in his long-time work as an independent contractor – at a Home Depot store some five years earlier. Counsel argued forcefully, and several of the judges appeared to accept the argument – that fairness required the prosecution to prove that Gonzalez knew that the knife he lawfully purchased for his work had the characteristics of a gravity knife. Indeed, in watching the back and forth, we were reminded of the famous Supreme Court decision, Morissette v. United States, 342 U.S. 246 (1952), taught in every first-year law school class, in which Justice Robert Jackson wrote: “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”

In the face of the persistent and probing questions put to her by several of the judges, the prosecutor argued that the Legislature intended only that a person know simply that he possessed a knife, not whether the knife had the characteristics of a prohibited weapon. When Judge Eugene Pigott pressed her with hypothetical situations in which someone might possess quite innocently a lawfully purchased gravity knife, counsel stated that prosecutorial discretion might be used to avoid unfair prosecutions. Judge Pigott responded by noting that such discretion could lead to discriminatory results, based perhaps on a prosecutor’s consideration of the defendant’s race, or other improper considerations.

In a decision issued on June 15, 2015, the New York Court of Appeals unanimously reversed. But the Court reversed the Appellate Division not on the weapon possession issue but on the ground that “there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct.” Thus, the Court was able to avoid addressing the troubling issue regarding whether there is any mental culpability requirement for possession of a weapon, besides the requirement that the person know he possesses an object, which turns out to be a prohibited item.

Why courts avoid decisions on some issues really goes to the heart of the judicial process. Courts typically do not reach out to decide difficult-to-resolve questions if they do not have to. This is especially true when a court confronts issues relating to the legitimacy of a statute, or an interpretation of a statute that may break new ground. Clearly, the weapons issue in Gonzalez was a broader and much more difficult question than the detention issue, a purely legal question. The Court ducked the weapons issue knowingly, and probably with the knowledge that it would confront a similar issue again, and on a record making a resolution more likely.

I Am Sure That’s Him … I Think – Eye Witness Identification: Improper Showups

POST WRITTEN BY: Maria Dollas (’16), J.D. Pace Law School

Often, there are no witnesses to a crime other than the victim. Given the stress and state of the victim the question arises whether such conditions affect this lone witness’s ability to accurately recall the assailant. Things become more muddied when the police apprehend an assailant (not necessarily THE assailant who committed the crime in question) and the police proceed to do more than to merely present the alleged assailant to the victim.

In a 3-1 majority the Appellate Division Second Department recently held that the use of showup identification by police was unduly suggestive and that the victim’s identification testimony should have been suppressed. People v. James, ___ N.Y.S.3d ___ 2015 N.Y. Slip Op. 03864 (App. Div. 2d Dep’t May 6, 2015).

The discrepancy in the attributes of the person the victim described and the person actually caught were significant:  they varied in age, height, and attire. The victim described her assailant as about 20 years old, 6 feet tall, wearing a brown and white striped shirt. The person apprehended by police was 13 years older and 4 inches shorter. A striped shirt of a different color combination, in this case a red-and-blue striped shirt was found near a parked vehicle and not on his person. Nonetheless, the police presented the person apprehended in handcuffs to the victim. That alone might have signaled guilt. It was particularly suspicious since the person arrested was walking shirtless in the area.

Still, the victim was not able to identify her assailant. It was only when the police purposely placed the miscolored striped shirt across the defendant’s chest that that the victim conceded that he was her assailant. The victim did not request the shirt to be placed upon the apprehended individual. Initially, she could not and did not identify him. It was only after the police officer took active steps that the victim said he was the one.

There is no doubt that the crime was committed. There is however doubt as to the reasonableness of the police tactics in presenting the apprehended individual to the victim. Showups and other identification procedures are not to be so unduly suggestive as to violate due process. The primary evil to be avoided is a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

The law is not concerned with the number of witnesses but rather with the quality of the identification given. Even a slight deviation from permitting the victim to objectively determine whether the person presented to her as the assailant taints the process. The circumstances in this case are not free from coaxing the victim even so slightly as to whether the right shirt and therefore the right person is in custody.

Additionally, the identification here may have been a cross-racial one:  the assailant was described as a light skinned black male, the victim was only described as a 22 year old female and her skin color was not noted. Ordinary human experience indicates that some people have greater difficulty in identifying members of a different race than they do in identifying members of their own race. See Gary L. Wells & Elizabth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol., Pub. Pol’y & L. 230 (2001).  Here, an already challenging identification may have been even more problematic by irresponsible police tactics.

The people’s burden is not only to prove beyond a reasonable doubt that a crime was committed but justice requires that the defendant is indeed the person who committed the crime. One person wrongly identified is one person too many whose liberty and life may be irrevocably altered because of the procedural missteps of others. Misidentification and its consequences can also happen to you and me.

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Fighting for the Client in the Bronx – Reflections of a Student-Attorney

The following is a story written by a current Pace Law School student who has been working in the Pace Criminal Justice Clinic during his third year of law school. He describes the trials and rewards of representing real clients and shares with all of us what he learned – a lesson to all criminal practitioners.

POST WRITTEN BY: Christopher James Di Donna ’14

Unlike many third-year law students, I am, thankfully, not helping to keep alive that old adage about one’s final year at law school (You know the part about how your professors bore you to death after they have scared and worked you to death.). My third year has been far from boring. Instead, I have spent my final year at Pace Law School working as a student-attorney under the supervision of Professors David Dorfman and Robin Frankel at the Barbara C. Salken Criminal Justice Clinic. I still have regular classes in addition to the clinic; however, the clinic has been my primary focus.

It took my family and friends some time to understand that my peers and I at the clinic are not just doing “mock trials” with “mock clients.” Instead, we work for real clients with real problems in real court facing real consequences in the Bronx. This clinic gives us the unique opportunity to learn about and practice law before we graduate and sit for the bar exam.

Case in point (the pun was intended): I had the privilege of representing a man charged with Driving While Ability Impaired under New York Vehicle and Traffic Law (V.T.L) section 1192(1).  For over three years, this man made countless court appearances professing his innocence. This case was transferred to us from Bronx Legal Aid Society at the suggestion of Professor Frankel. I worked the case  for three and half months. I reviewed the case-file numerous times, especially the Intoxicated Driver’s Testing Unit (IDTU) video, investigated the scene of the alleged crime with my client and fellow students, and corresponded with the Bronx District Attorney’s Office.

The true highlight of this case was representing my client in a Dunaway/Johnson (probable cause for arrest) and Huntley (voluntariness of defendant’s statement) hearings. Here I was a third-year law student cross-examining a veteran highway officer of the NYPD; impeaching him on his own omissions and the inconsistencies between his testimony and his memo-book and arrest report. My cross-examination of the arresting officer and his demeanor throughout the hearings convinced the judge to suppress all the DA’s evidence. The DA’s Office was forced to dismiss the case and my client received the justice he sought after more than three years.

My work on this case and my overall experience at the clinic has had a profound effect on me. I realized the importance of persistence. To be an effective advocate you have to work a case hard. You have to think about the case often and play out all the approaches and possibilities in your mind. I thought about this case when I grocery shopped, drove, showered, and at countless other times of the day and night. The more hours I put into his case, the more sense I made of it. I learned the strengths and the weakness of the case and the law and the people involved in it. My strategy morphed over those months with each realization. Even during the suppression hearing, with the help of Professor Frankel and a fellow student-attorney at the clinic and my second seat on the case, Alexandra Ashmont, I tweaked and adjusted my cross examination of the arresting officer on the spot. Without persistence from day one to the day you go to court, I do not believe that one will achieve a palpable and just result for his or her client. And neither will you feel good about the result if you did not invest the necessary time into the case.

This experience taught me that the law, especially criminal law, is about real people in really bad binds. You as the advocate are sometimes the one person holding up the walls from crashing down on your client. You have a duty, within the confines of the rules of professional responsibility and ethics, to get the best results for your client. You have to listen to the client, chase down leads and documents, and beat your head on your desk until the best strategy falls out. The Pace Criminal Justice Clinic gave me the opportunity to learn, to help others, and to avoid being bored to death in my final year of law school.

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