People v. Barshai

Decision Date29 March 1984
Citation100 A.D.2d 253,474 N.Y.S.2d 288
PartiesThe PEOPLE of the State of New York, Respondent, v. Allah BARSHAI a/k/a Barshai Allah, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Henry Winestine, New York City, of counsel (William E. Hellerstein, New York City), for defendant-appellant.

Bruce Allen, New York City, of counsel (Norman Barclay, New York City, with him on the brief; Robert M. Morgenthau, New York City), for respondent.

Before MURPHY, P.J., and SANDLER, SULLIVAN, CARRO and ASCH, JJ.

SANDLER, Justice.

This is an appeal from an order of the Supreme Court, New York County, entered on April 11, 1983, denying defendant's motion pursuant to CPL § 440.10 to vacate an affirmed judgment of conviction of the defendant on the essential ground that the failure of his trial counsel to move to suppress certain evidence critical to his conviction violated his constitutional right to effective assistance of counsel.

In affirming the defendant's conviction for robbery in the first degree and related offenses, this Court did so "without prejudice to any post-conviction motion defendant may be advised to make based on a claim of ineffective representation by counsel." People v. Barshai, 72 A.D.2d 503, 420 N.Y.S.2d 526. Leave to appeal having been denied by a judge of the Court of Appeals, 48 N.Y.2d 976, 977, 425 N.Y.S.2d 1031, 401 N.E.2d 418, defendant next pursued his claim in a petition for habeas corpus relief in the United States District Court for the Southern District of New York. The petition was dismissed on the ground that State remedies had not been exhausted because the record failed to disclose the reasons for the failure to make a suppression motion. Allah v. Henderson, 526 F.Supp. 282, aff'd. 697 F.2d 287.

The motion pursuant to CPL § 440.10 followed. The moving papers include an affirmation by the defendant-appellant's attorney that in a conversation with defendant's trial counsel the latter stated that he had not moved to suppress because the defendant had told him that he never possessed any of the items in question, and accordingly he did not believe that the defendant had standing to make the motion.

At about midnight on November 4, 1976, the complainant, Spiros Papankhas, was the victim of a robbery perpetrated by two men, one of whom was armed with a gun. The robbery commenced at the doorway to his apartment building and proceeded into the complainant's fourth floor walk-up apartment. As here pertinent, there was taken in the course of the robbery some $230 in cash, half a torn dollar bill, a set of complainant's house keys, a jar of pennies, and his bank passbook.

About one hour later, two police officers patrolling the area around York Avenue and 70th Street observed the defendant and a codefendant (Gillette) in what appeared to be an altercation with a third person. The three men separated, and the defendant and Gillette walked toward a bus stop. Gillette was carrying a jar of pennies which he placed on the sidewalk behind the bus stop enclosure. The officers left the car and directed the defendant and Gillette not to move. Defendant continued to walk, and when an officer yelled, "Police. Don't move", he started to run. The officer followed, stopping momentarily to radio a request for help while the other officer detained Gillette.

The defendant was seen by a civilian witness to throw a small dark object over the terrace of 420 East 70th Street. Two officers responding to the radio call stopped the fleeing defendant. While frisking the defendant, he was seen to put his hands into a pocket. A search of the pocket disclosed the complainant's bankbook. The police thereafter found in the general area that had been described by the civilian a gun loaded with three live rounds. There was also recovered from the defendant at the station house three $20 bills and one-half of a torn dollar bill. A search of Gillette disclosed the complainant's keys, $75.00 in cash, and a bloodstained pair of pants.

After the indictment and prior to trial, Gillette's attorney moved to suppress the items found on Gillette, alleging, on the basis of what he had been told by an assistant district attorney, that these items would be offered in evidence against Gillette. The district attorney consented to a hearing, and the court granted the motion to suppress after the hearing. The indictment against Gillette was thereafter dismissed. No motion to suppress was made on behalf of this defendant, who was convicted after a trial in which there was introduced into evidence the gun and the items of evidence found on him and on Gillette.

In substance, the defendant urges on the appeal that his constitutional right to effective assistance of counsel was violated by the failure of his trial attorney to move to suppress the gun and the items of evidence allegedly found on his person, particularly in light of the successful motion that had been made on behalf of the codefendant, and that such a motion would have resulted in the suppression of evidence clearly essential to his conviction.

Although defendant's contention is a substantial one, and the issue presented is not free from doubt, we have concluded after a study of the relevant facts in light of the legal authorities at the time of this 1977 trial that the failure of defendant's experienced trial counsel to move to suppress did not violate defendant's constitutional right to the effective assistance of counsel. In reaching this conclusion, we recognize that the central importance of the items of evidence in question to the outcome of defendant's trial was such that any reasonable doubt counsel entertained as to the viability of a motion to suppress should have been resolved in favor of making the motion. On the other hand, in the then existing state of the law, defense counsel had a solid basis for the judgment that defendant lacked standing to move to suppress items of property which he denied owning or possessing. We are not persuaded that such a good faith judgment by an experienced lawyer can fairly be characterized as constituting ineffective assistance of counsel.

Moreover, it seems to us pertinent to the issue raised that defense counsel could reasonably have believed that the motion, even if standing were established, had little, if any, chance of success.

Although the central issue has been argued in terms of whether or not defendant had standing to move to suppress, it becomes apparent on analysis that the word "standing" somewhat obscures the nature of the underlying problem presented. Indisputably a defendant has standing to move to suppress items of property taken from his person, precisely as would a tenant of an apartment have standing to move to suppress property seized as a result of a search of his apartment. The real question presented is the character of the allegations necessary under CPL §§ 710.20 and 710.60 to establish the kind of proprietary or possessory interest in seized property that would constitute defendant an aggrieved person with standing to move to suppress. More specifically, the question confronting defense counsel was whether a defendant who denied possession or ownership of certain items of evidence could nonetheless allege standing on the basis of a lawyer's affidavit asserting what the lawyer had been told as to what the prosecutor intended to prove. Although CPL § 710.60(1) specifically permits a motion to suppress to include allegations of fact based on "information and belief", it is by no means self-evident that this language was intended to permit standing to be so established with regard to items of evidence concerning which a defendant, necessarily with direct knowledge of the facts, denies any proprietary or possessory interest.

The answer to this question as of the time of the 1977 trial is less clear than one would have supposed. Perplexingly, the issue appears not to have been addressed in any reported New York opinion, trial or appellate, prior to this Court's decision in People v. Sutton, 91 A.D.2d 522, 456 N.Y.S.2d 771, decided some years after the defendant's trial, and in which this Court, in a carefully limited decision turning on the particular facts in the record, upheld the defendant's right to a hearing notwithstanding his failure to assert directly a possessory interest in the seized evidence. Cf. People v. Taylor, 97 A.D.2d 381, 467 N.Y.S.2d 590. In the absence of any reported New York decision addressing the issue at the time of the defendant's trial, it seems appropriate to an evaluation of trial counsel's decision not to move to suppress, although not necessarily decisive, to refer to the body of law that had developed in the federal courts under Rule 41(e) of the Federal Rules of Criminal Procedure, the federal counterpart to CPL Article 710. A study of the federal cases indicates that under the dominant federal rule defendant would have lacked standing to move to suppress items of property as to which he did not allege, and in fact disclaimed, any proprietary or possessory interest.

Indeed, this prevalent federal view appears to have been the principal factor in persuading the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, to adopt with regard to possessory crimes the doctrine of automatic standing, a doctrine which more recently has been abrogated. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. Thus in Jones the Supreme Court said, 362 U.S. at 261, 80 S.Ct. at 731: "To establish 'standing', Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched."

Underlining the dilemma that had confronted defendants in cases in which possession of the seized items in question was an essential...

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10 cases
  • People v. Gonzalez
    • United States
    • New York Supreme Court — Appellate Division
    • March 4, 1986
    ...the search of defendant's person. Clearly, he has standing to move to suppress property taken from his person (see, People v. Barshai, 100 A.D.2d 253, 256, 474 N.Y.S.2d 288). There were no charges associated with the search of the bag, it being undisputed that the bag contained empty glassi......
  • Allah v. LeFevre, 85 Civ. 3678 (MEL).
    • United States
    • U.S. District Court — Southern District of New York
    • March 3, 1986
    ...opinion on April 11, 1983. On appeal, the Appellate Division unanimously affirmed the lower court's decision. People v. Barshai, 100 A.D.2d 253, 474 N.Y.S.2d 288 (1st Dept.1984). In his opinion for the court, Judge Sandler concluded that "in the then existing state of the law, defense couns......
  • People v. Gordon
    • United States
    • New York Supreme Court
    • June 12, 1985
    ...facts developed before Sutton but was written after Sutton is a very interesting case. Therefore, please read this People v. Barshai case (100 A.D.2d 253, 474 N.Y.S.2d 288 whereat Mr. Justice Sandler wrote, " * * * Indisputably a defendant has standing to suppress items of property taken fr......
  • People v. Rada
    • United States
    • New York Supreme Court
    • September 14, 1988
    ...physical possession of the bag. Even defendant, who testified at the hearing, denied ever possessing the bag (cf. People v. Barshai, 100 A.D.2d 253, 256-257, 474 N.Y.S.2d 288). Second, a defendant may obtain automatic standing if an allegation of possession is founded entirely on a statutor......
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