For the People: Assistant District Attorney Siobhan Carty New York County District Attorney's Office One Hogan Place.
For the Defendant: Center for Appellate Litigation (David Klem and Rachel Goldberg, of counsel).
Robert M. Stolz, J.
Defendant was found guilty after trial of Criminal Possession of a Weapon in the Second Degree, and on December 15, 2010, was sentenced by this Court to a term of imprisonment of five years' imprisonment to be followed by 2½ years of post-release supervision. Timely notice of appeal was filed, and appellate counsel was appointed on February 12, 2012. Defendant has now filed a motion, through counsel, to vacate his conviction pursuant to CPL § 440.10, claiming that his lawyer provided ineffective assistance of counsel.  The People oppose the motion.
Defendant bases his claim of ineffective assistance of counsel on counsel's failure to move for a Mapp hearing before trial, arguing that had such a motion been made, there was a "strong likelihood" that he would have won suppression of the gun recovered. At trial, Officer Richard Pengel testified that at about 9:30 p.m. on December 27, 2008, while on Adam Clayton Powell Boulevard (7th Avenue) and 145th Street, in plainclothes and in an unmarked car, he and three other officers responded to a report of shots fired in the vicinity of 150th Street and Macombs Place. The officers decided to proceed to 7th Avenue between 149th Street and 150th Street (about a block from where the shots had reportedly been fired), the location of the Dunbar apartment complex, because they thought that the perpetrators might exit from that location and attempt to get on the subway at 7th Avenue and 149th Street. The report had described the shooter as a black male in a black bubble jacket.
As soon as the officers arrived at the entrance to the Dunbar complex, they saw two black males exiting the complex, one wearing a black bubble jacket, and the other a gray jacket. The shorter one, wearing the black jacket, was later identified as Matthew Taylor, while the taller one in the gray jacket was later identified as the defendant, Rashid Bilal. The officers noted that Taylor matched the description, but also wanted to ask if the men had heard shots fired in the area, so they stopped directly behind the two men. Lieutenant O'Neill got out of the car, saying, "Hey, buddy, come here." Taylor stopped, but the defendant began to run, turning onto 149th Street toward 8th Avenue. Pengel followed the defendant in his car, while two other officers pursued the defendant on foot. Pengel did not hear anyone identify himself as a police officer. While chasing the defendant, Pengel intermittently pressed the air horn, producing a siren sound. Pengel then saw the defendant pull himself up a construction fence, throw a black object over the fence, drop back down, and continue to run. As Pengel chased the defendant, repeatedly ordering him to stop, the defendant finally stopped in the middle of the block, where he was apprehended. A loaded gun was recovered from the area where Pengel saw the defendant throw an object over the fence.
Defendant was indicted for second-degree weapons possession, based on a criminal complaint alleging that Pengel "recovered a loaded gun from where [he] observed the defendant throw it." Defense counsel filed an omnibus motion requesting a bill of particulars and discovery, as well as a request to inspect and dismiss the grand jury minutes; he made no request for any pre-trial hearings. Defense counsel met with appellate counsel (and counsel on this motion), and according to appellate counsel, defense counsel explained that he did not move for a Mapp hearing because he believed that defendant would have had to admit possession of the weapon in order to establish standing, and that such an admission would preclude his testimony at trial. He also stated that he had never thought about using the allegations as stated in the criminal complaint to establish standing, and had he known he could have established standing, he would have moved for suppression. See Defendant's Motion, Klem Affirmation at 6. No Mapp hearing was held.
To establish a claim of ineffective assistance of counsel, a defendant must prove that counsel's performance, viewed in its totality, did not amount to meaningful representation. See People v. Benevento, 91 N.Y.2d 708, 711-12 (1998); People v. Barnes, 106 A.D.3d 600, 605 (1st Dep't 2013). A showing that counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel. People v. Rivera, 71 N.Y.2d 705, 709 (1988). But where a single, substantial error "so seriously compromises a defendant's right to a fair trial, it will qualify as ineffective representation." People v. Hobot, 84 N.Y.2d 1021, 1022 (1995). The defendant must demonstrate the absence of any legitimate or strategic explanation for defense counsel's actions. See Rivera, 71 N.Y.2d at 709; Barnes, 106 A.D.3d at 605. The defendant must also show prejudice, although the standard differs slightly under state and federal law. Under state law, a defendant must show that counsel's errors ultimately affected the fairness of the process as a whole, or had an adverse impact on the basic points essential to the defense. See Benevento, 91 N.Y.2d at 713-14; Barnes, 106 A.D.3d at 605; People v. LaBron, 172 A.D.2d 462, 463 (1st Dep't 1991). Under federal law, a defendant must show that there was a reasonable probability that, but for counsel's unprofessional conduct, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984); Barnes, 106 A.D.3d at 605. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Here, counsel's failure to move for a suppression hearing was error, particularly in a case where suppression of the gun would in all likelihood have meant the end of the case. See People v. Turner, 5 N.Y.3d 476 (2005). The People do not argue that counsel's inaction was based on a strategic decision. Nor is there a persuasive argument to be made, particularly where counsel's comments to appellate counsel demonstrated a misunderstanding of the applicable law. See Rivera, 71 N.Y.2d at 709 ("erroneous legal judgments about the viability of a request for a hearing" differ from a failure to move "motivated by strategy"). Under People v. Burton, 6 N.Y.3d 584, 589 (2006), a defendant may rely on police factual assertions in a motion to suppress, and need not personally admit possession in order to comply with pleading requirements. See also People v. Johnson, 42 A.D.3d 341, 342-43 (1st Dep't 2007). 
However, as noted above, a conclusion that counsel made an error does not end the inquiry. There must be a finding that counsel's errors caused defendant prejudice. The People argue that defendant would not have prevailed at a hearing, while defendant argues that there was a "reasonable probability" that he would have won such a hearing. 
Here, defendant's spatial and temporal proximity to the report of shots fired, and the fact that the clothing of the two men matched to some degree that of the radioed description, provided the police with a level two common-law right to approach the men and gain explanatory information. See People v. DeBour, 40 N.Y.2d 210, 223 (1976); People v. Lacy, 104 A.D.3d 422, 423 (1st Dep't), lv den, 960 N.Y.S.2d 407 (2013); People v. McKinley, 101 A.D.3d 1747, 1748 (4th Dep't 2012); People v. Ward, 201 A.D.2d 292 (1st Dep't 1994). Where a defendant flees from the police, who have justification for a common-law right to inquire, the predicate ripens into reasonable suspicion and permits police pursuit or limited detention. See People v. Moore, 6 N.Y.3d 496, 500 (2006); People v. Pines, 99 N.Y.2d 525, 526-27 (2002); People v. Martinez, 80 N.Y.2d 444, 448 (1992); People v. Brujan, 104 A.D.3d 481, 482 (1st Dep't 2013). Defendant argues, however, that because the police here were in plainclothes and in an unmarked car, that defendant's flight was "innocuous, " and that he fled "because of what he believed to be threatening strangers." Defendant's Memorandum of Law at 13-14. Defendant cites two cases in support, from the Second and Fourth Departments: People v. Riddick, 70 A.D.3d 1421 (4th Dep't 2010) and People v. Beckett, 88 A.D.3d 898 (2d Dep't 2011). While those cases are distinguishable from the facts at hand, even more importantly, several cases from the First Department, most with remarkably similar facts, do not support defendant's position. 
Most recently, in Lacy, the First Department noted that it had " repeatedly observed that the circumstances of a case may indicate that a suspect recognized the police, even where the officers were neither in uniform nor in a marked car." 104 A.D.3d at 423 (emphasis added). In that case, a common law right to inquire ripened into reasonable suspicion after the police, in response to a report of shots fired, saw the defendant, who matched a clothing description, in "spatial and temporal proximity" to the crime, and he fled even though the police were in an unmarked car as they approached. The circumstances "permitted the officers to reasonably infer that defendant fled because he realized he was in the presence of police." Id.
The court cited People v. Collado, 72 A.D.3d 614 (1st Dep't), lv den, 15 N.Y.3d 850 (2010), and the "cases cited therein" in support of this proposition. In Collado, a common-law right to inquire, based on the defendant's resemblance to a police sketch of a wanted person, was elevated to reasonable suspicion when the defendant fled, even though the officers were in plainclothes and an unmarked car. "The circumstances permitted the officers to reasonably conclude that the most likely explanation for defendant's behavior was that he had recognized them as police." 72 A.D.3d at 615 (emphasis added). Similarly, in Ward, defendant's location near where a robbery had just occurred, and the match of his clothing, "to some degree, " to that of the robber's clothing, justified a common-law inquiry. Even though the police were in civilian clothes and an unmarked car, defendant's flight in response to their approach, especially when, as here, he "continued to flee after the police put on their siren, " created reasonable suspicion and justified his brief detention. 201 A.D.2d at 292-93. See also People v. Pitman, 102 A.D.3d 595 (1st Dep't 2013) (defendant's flight, even though police in plainclothes and unmarked car, elevated level to reasonable suspicion); People v. Byrd, 304 A.D.2d 490 (1st Dep't), lv den, 100 N.Y.2d 579 (2003) (flight elevated level to reasonable suspicion even though officers in civilian attire and unmarked car; defendant "reasonably appeared to have recognized the police"); see also McKinley, 101 A.D.3d at 1749. Thus, following Collado, Ward, and By ...