Sunday, May 3, 2009

Counsel Must Be Very Specific In Denying Police Allegations

Sometimes the lasting parts of a court decision come in the seemingly throwaway lend of the decision in which a court considers one final issue. That seems likely to to be the case with the decision of the the court of Appeals in People v Mattocks (_ NY3d _, 2009 NY Slip Op 03408[4/30/09) a decision which mostly addresses whether creasing a Metrocard to fool the card reader into allowing unpaid swipes constitutes forgery. While that might be an important and recurring issue for those who practice in New York City, the rest of us might be tempted to skip the decision. That would be a mistake because, after dealing with the forgery issue at length, the the Court upheld the denial of Mr. Mattocks' suppression motion on reasoning that might come to haunt defense attorneys throughout the state. Specifically, the Court of Appeals held that the Supreme Court did not err in denying a probable cause motion without a hearing, because it found that that the defendant's motion papers did not sufficiently challenge the People's papers alleging probable cause to arrest. The insufficiency is not one that is immediately obvious.

The police officer averred that he had observed the defendant appear to illegally swipe three people into the subway in exchange for money from subway riders. The defendant alleged in his motion papers that he was merely been "speaking with various neighborhood acquaintances.."

Sounds like a denial. He did not, however, specifically challenge the assertion that he had been selling swipes, although he appeared to implicitly do so by his statement that he had merely been chatting with people he knew. The Court of Appeals
determined that the defendant's motion papers, thus, had failed to create a factual dispute on the question of whether he had been seen selling swipes and was thus not entitled to a probable hearing on the issue.

Lesson: It is important for attorneys to plainly and unequivocally contest
the People's allegations in their motion papers justifying the lawfulness
of police conduct. If necessary, attorneys should file supplemental papers
to expressly and specifically contest the People's allegations. The failure to do so might result in your client be denied a suppression hearing and for the attorney to be accused (with cause - not that we know what is required) of ineffective assistance of counsel.

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