[977 N.Y.S.2d 705] Lynn W.L. Fahey, Appellate Advocates, New York City (Allegra Glashausser of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Suzanne H. Sullivan and John M. Castellano of counsel), for respondent.
[999 N.E.2d 1150] The order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed. In the event defendant prevails on the suppression issue, the conviction should be vacated and the indictment dismissed; alternatively, if the People prevail, the judgment should be amended to reflect that result.
Defendant was charged with weapon possession offenses after he was found in possession of a gun as a consequence of a [999 N.E.2d 1151] [977 N.Y.S.2d 706] street
encounter with the police. Three days before the suppression hearing, his assigned counsel made an application to be relieved as counsel, stating that his associate had quit, he was overwhelmed with work and could not competently represent defendant. Counsel restated these concerns on the record before the hearing commenced and the court stated that the motion would be granted after counsel completed the hearing. Thereafter, the hearing ensued, the court denied suppression, new counsel was appointed and the case proceeded to trial where defendant was convicted of criminal possession of a weapon in the second and third degrees.
On appeal, defendant sought reversal of his conviction based on the ineffective assistance of his first attorney. The Appellate Division affirmed the judgment in a divided decision ( 95 A.D.3d 1349, 945 N.Y.S.2d 349 [2d Dept.2012] ). The majority concluded that counsel's representation had not fallen below the constitutional standard but the dissent disagreed, reasoning that multiple errors by the attorney in relation to defendant's suppression application warranted remittal of the case to Supreme Court. The Appellate Division dissenter granted defendant leave to appeal to this Court (19 N.Y.3d 1030, 953 N.Y.S.2d 563, 978 N.E.2d 115  ).
We agree with the dissent that defendant is entitled to relief. In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police. 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.
And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent
representation to defendant. Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects— both before, during and after the proceeding— that defendant was not afforded meaningful representation at a critical stage of this prosecution.
The People contend that, even assuming counsel was deficient, the conviction should be affirmed because there is record support for the order denying suppression and defendant has failed to establish prejudice. We are unpersuaded. In this case it is not necessary for us to discuss the merits of the suppression issue to decide the ineffective assistance claim, other than to note that, on appeal, the parties have presented substantial arguments for and against suppression and the issue is close under our complex De Bour jurisprudence. The suppression motion could have been dispositive of the entire proceeding given that defendant was charged solely with weapon possession offenses stemming from his encounter with police and, had suppression been granted, [999 N.E.2d 1152] [977 N.Y.S.2d 707] the indictment would have been dismissed. 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. Relief is therefore appropriate under our meaningful representation standard, which does not invariably require a strict showing of prejudice ( People v. Stultz, 2 N.Y.3d 277, 284, 778 N.Y.S.2d 431, 810 N.E.2d 883  ). We conditionally modify the judgment by remitting this matter to Supreme Court for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing.
RIVERA, J. (dissenting).
I do not consider this issue " close under our complex De Bour jurisprudence" (majority mem. at 934, 977 N.Y.S.2d at 706, 999 N.E.2d at 1151). Based on the record before us, the detective's testimony makes clear that, as a matter of law, suppression is warranted. To say that Supreme Court could have concluded otherwise and found requisite reasonable suspicion is to say that Supreme Court could have committed reversible error by reaching a legal conclusion for which there is no record support. I ...