People v. Clermont
| Decision Date | 22 October 2013 |
| Docket Number | No. 166.,166. |
| Citation | 2013 N.Y. Slip Op. 06806,977 N.Y.S.2d 704,999 N.E.2d 1149,22 N.Y.3d 931 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jocelyn CLERMONT, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
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.
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 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 [2012] ).
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, 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 [2004] ). 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.
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 would grant that branch of defendant's motion to suppress physical evidence and dismiss the indictment. Accordingly, I dissent.
Defendant was arrested and charged with criminal possession of a weapon. Prior to defendant's trial, counsel moved as part of an omnibus motion to suppress the weapon, a gun seized shortly after defendant's arrest. However, in that branch of defendant's omnibus motion that sought suppression of physical evidence, counsel recited a wholly different factual scenario from the events actually leading up to defendant's arrest and the seizure of the gun. Counsel incorrectly stated that police officers approached defendant while he was seated in an automobile, and that after they forcibly removed him from the vehicle, a gun fell out onto the ground. This was a complete fiction. The correct facts were that the officers had observed defendant walking on the street, arrested him after a chase on foot, and seized the gun from a private yard near where he was arrested. Additionally, because counsel's legal argument was based on these incorrect facts, he also failed to tailor the legal standards to the specifics of defendant's case. Although counsel's motion papers stated that he was “unaware of many of the relevant facts necessary to [his] preparation of the defense,” and requested permission to submit a post-hearing memorandum, “so that [he] might more effectively represent the interests of [defendant],” he never filed such memorandum.
Counsel thereafter sought to extricate himself from the case, apparently because he was unable to provide competent representation as a consequence of staffing issues in his office. Three days prior to the hearing on the suppression motion, defense counsel moved to be relieved from representing the defendant. He informed the court that due to his associate's unexpected resignation, he had an overwhelming amount of work, much of which involved matters that conflicted with his state cases. He stated that he did not have “sufficient time and/or resources to competently represent” all of his clients.
Counsel renewed his motion to withdraw on the morning of the hearing, stating that his practice was predominately in immigration law, and that he was scheduled for another criminal trial that very same day. The court did not rule on the motion, but instead asked counsel if he could proceed with the “hearing today and get the case to a trial posture.” Counsel agreed to proceed, but informed the court that he would make his motion to be relieved at the end of the suppression hearing.
The People's sole witness at the suppression hearing was the arresting detective, a 10–year veteran of the New York City Police Department, currently assigned to the Queens Gang Squad, where he had worked for approximately six years. He testified that on the night of defendant's arrest, at about 9:15 p.m. , he was driving an unmarked police car on a routine patrol of an area in Queens, known to the police as a “gang location.” The detective was on patrol with his partner when he observed defendant and another man walking down the street. He saw defendant make what the detective described as “constant adjustments to his right waistband area.” He then stopped the car, got out, displayed his shield and identified himself to the defendant. Defendant turned and ran away, and the detective ran after him down a driveway and through a backyard area. During the chase, the detective saw defendant take a gun from his waistband area and throw it to the ground. The detective caught defendant, arrested him and retrieved the gun from the yard where it had been tossed.
Upon cross-examination, defense counsel's only questions regarding the events leading up to the officer's foot chase of the defendant focused on why the officers were patrolling the neighborhood and whether defendant was alone. Counsel did not call any witnesses, did not make an opening or closing statement, and in response to the court's inquiry as to whether he wished to be heard, counsel...
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