People v. Clermont

• Decision Date: 30 May 2012
• Citation: 2012 N.Y. Slip Op. 04189,95 A.D.3d 1349,945 N.Y.S.2d 349
• Parties: The PEOPLE, etc., respondent, v. Jocelyn CLERMONT, appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1349

945 N.Y.S.2d 349

2012 N.Y. Slip Op. 04189

The PEOPLE, etc., respondent,

v.Jocelyn CLERMONT, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 30, 2012.

Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent.

MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered June 2, 2008, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for the issuance of an amended presentence report, and a sentence and commitment sheet, to provide that the defendant was convicted, under count one of the indictment, of criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03(1)(b).

On October 15, 2006, at 9:15 P.M., a detective and a police officer, both wearing plain clothes, were patrolling a neighborhood of Jamaica, Queens, in an unmarked vehicle. The area was known for gang activity. At some point during the patrol, the detective and the officer observed the defendant and another man walking down the street. Upon observing the defendant adjusting his right waistband, they stopped their vehicle. They then exited the vehicle, displayed their shields, and identified themselves as police. The defendant ran in the opposite direction. While the defendant was being chased by the detective, he removed a firearm from the right side of his waistband and threw it to the ground. The detective apprehended the defendant and placed him under arrest. The defendant's attorney moved to suppress the firearm, and the Supreme Court directed a suppression hearing. After conducting the hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the firearm. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree.

On the appeal from the judgment of conviction, the defendant argues, inter alia, that he was deprived of the effective assistance of counsel at the suppression hearing. Specifically, the defendant contends that his counsel was ineffective because he failed to make opening and closing arguments at the suppression hearing, suggesting that counsel did not believe there was a basis for suppression. Further, our dissenting colleague notes that the suppression court then erred in making a factual finding that the defendant dropped his weapon before the police chase rather than during the chase itself.

Under the standard recognized in New York, counsel is effective “when the defense attorney provides meaningful representation” ( People v. Stultz, 2 N.Y.3d 277, 279, 778 N.Y.S.2d 431, 810 N.E.2d 883 [internal quotation marks omitted]; see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112;People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400). “In reviewing claims of ineffective assistance, care must be taken to ‘avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' ” ( People v. Satterfield, 66 N.Y.2d 796, 798, 497 N.Y.S.2d 903, 488 N.E.2d 834, quoting People v. Baldi, 54 N.Y.2d at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400). While a single error may qualify as ineffective assistance, it may only do so when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). Moreover, ineffectiveness claims must be viewed within the context of the fairness of the process as a whole rather than its particular impact on the outcome of the case ( see People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Bodden, 82 A.D.3d 781, 783, 918 N.Y.S.2d 141;People v. Georgiou, 38 A.D.3d 155, 161, 828 N.Y.S.2d 541). Standing alone, the waiver of an opening and/or closing statement is not necessarily indicative of ineffective assistance of counsel ( see People v. Aiken, 45 N.Y.2d 394, 400, 408 N.Y.S.2d 444, 380 N.E.2d 272;People v. Chapman, 54 A.D.3d 507, 511, 862 N.Y.S.2d 660). Indeed “[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” ( People v. Henry, 95 N.Y.2d at 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [internal quotation marks omitted]; see People v. Flores, 84 N.Y.2d 184, 188–189, 615 N.Y.S.2d 662, 639 N.E.2d 19).

Notwithstanding the absence of an opening or closing statement and the suppression court's mistaken factual finding as to when the defendant dropped the weapon, we find that the evidence, the law, and the particular circumstances of this case, viewed in totality, reveal that defense counsel provided meaningful representation ( see People v. Cummings, 16 N.Y.3d 784, 785, 919 N.Y.S.2d 500, 944 N.E.2d 1139,cert. denied––– U.S. ––––, 132 S.Ct. 203, 181 L.Ed.2d 108;People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). Defense counsel moved for, and obtained, a suppression hearing. A review of the hearing transcript demonstratesthat defense counsel's cross-examination of the detective was reasonably competent and thorough. In lieu of a closing argument, both the prosecutor and defense counsel relied upon the record.

As the defendant argues, and as the People correctly concede, the defendant's presentence report and the sentence and commitment sheet incorrectly reflect that the defendant was convicted, under count one of the indictment, of criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03(2). However, the defendant was convicted under that count pursuant to Penal Law § 265.03(1)(b). Accordingly, the matter must be remitted to the Supreme Court, Queens County, for the issuance of an amended presentence report and sentence and commitment sheet to properly reflect the crime of which the defendant was convicted under that count.

The sentence imposed was not excessive ( see People v. Elhadi, 304 A.D.2d 982, 759 N.Y.S.2d 781;People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, without merit.

DILLON, J.P., ENG, and SGROI, JJ., concur.

MILLER, J., dissents and votes to remit the matter to the Supreme Court, Queens County, to hear and report on that branch of the defendant's omnibus motion which was to suppress physical evidence, and to hold the appeal in abeyance in the interim, with the following memorandum:

I respectfully dissent.

The defendant was observed by police officers walking down the street, adjusting the waistband of his pants. The police stopped their car and approached the defendant, displaying their shields and identifying themselves as police. The defendant allegedly ran into the backyard of a private residence and, while being pursued by police, discarded a firearm.

The defendant was charged with, inter alia, criminal possession of a weapon in the second degree. His assigned 18–B counsel moved, among other things, to suppress the weapon allegedly recovered by the police on the date of the defendant's arrest. Assigned counsel submitted an affirmation in support of the motion.

In what can only be described as a mistake, the affidavit consisted of arguments addressed to a different case involving a separate set of facts and distinct legal issues. Assigned counsel stated the following in support of the motion:

“at the time and place of the occurrence, the defendant was seated in an automobile. The police, wholly without probable cause and without consent, approached the automobile and forcibly removed Mr. Clermont. When Mr. Clermont was removed from the car, a gun fell out of the car and onto the ground.

“The police grabbed Mr. Clermont, dragged him along the ground, and placed him in handcuffs.

...

“The firearm that fell from the automobile in which Mr. Clermont was seated was seized without probable cause, in violation of the Fourth Amendment of the United States Constitution, and the Constitution and laws of this State.

“The defense therefore requests that the property seized from Mr. Clermont be suppressed, or in the alternative, that a hearing be granted.”

Assigned counsel also noted that he was “presently unaware of many of the relevant facts necessary to [his] preparation of the defense in this matter” and requested the opportunity to submit a memorandum of law after the suppression hearing.

The People opposed the defendant's motion and submitted an affirmation in which they contended that the defendant failed to allege specific facts in his motion papers warranting suppression. The People also advanced legal arguments relevant to the facts of the case.

Prior to the date of the suppression hearing, assigned counsel moved to be relieved as the defendant's attorney. In his affirmation submitted in support of his application, he stated that his associate had unexpectedly resigned and that he was left with “an overwhelming amount of work.” Assigned counsel affirmed that he did not have “sufficient time and/or resources to competently represent all of [his] ... cases.”

On the date of the suppression hearing, assigned counsel initially reminded the Supreme Court of his pending...