Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any timeto make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any time to make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

by

Jill Paperno, 
Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).   

by

Jill Paperno, 
Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).