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A detective and a police officer, both wearing plain clothes, were patrolling a neighborhood of 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 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, the dissenting notes that the suppression court erred in making a factual finding that the criminal defendant dropped his weapon before the police chase and not during the chase itself.

Under the standard recognized in New York, counsel is effective when the defense attorney provides meaningful representation. In reviewing claims of ineffective assistance, care must be taken to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. 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. 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. Standing alone, the waiver of an opening and/or closing statement is not necessarily indicative of ineffective assistance of counsel. Indeed isolated errors in counsel’s representation generally will not rise to the level of ineffectiveness, unless the error is so serious that the burglary defendant did not receive a fair trial.

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. Defense counsel moved for, and obtained, a suppression hearing. A review of the hearing transcript demonstrates that 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. However, the defendant was convicted under that count. Accordingly, the matter must be remitted to the County Supreme Court 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. The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit.

The dissenting votes to remit the matter to the County Supreme Court 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.

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 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. The 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 that 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 the defendant. When the defendant was removed from the car, a gun fell out of the car and onto the ground.

The police grabbed the defendant, dragged him along the ground, and placed him in handcuffs. The firearm that fell from the automobile in which the defendant was seated was seized without probable cause, in violation of the Fourth Amendment of the United States Constitution, and the Constitution and laws of the State.

The defense therefore requests that the property seized from the defendant be suppressed, or in the alternative, that a hearing be granted. The assigned counsel also noted that he was presently unaware of many of the relevant facts necessary to his preparation of the defense in the matter and requested the opportunity to submit a memorandum of law after the probation 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. The assigned counsel affirmed that he did not have sufficient time and/or resources to competently represent all of his cases.

The assigned counsel declined the opportunity to make an opening statement. The People presented one police witness who testified about how he came to recover the weapon. He stated that he had approached the defendant after observing him adjust his waistband. When he identified himself as a police officer, the defendant ran into the backyard of a private residence. The police officer, a detective, pursued the defendant. The detective testified that, during the course of the chase, he saw the defendant throw an object that was later recovered and identified as a handgun. The assigned counsel cross-examined the detective. The defendant presented no witnesses. Bail reduction was sought.

At the close of the evidence, assigned counsel chose to rely on the record declining the opportunity to make a legal argument or to otherwise make any closing statement. The assigned counsel did not ask for leave to serve a supplemental memorandum as he had requested in his motion papers, and no such memorandum was ever provided. After the prosecutor also elected to rely on the record, and, presumably, the legal argument presented in the opposition papers, the Supreme Court denied that branch of the defendant’s motion which was to suppress the weapon allegedly recovered by the police. The Supreme Court stated that it would issue a written order deciding the motion and then proceeded to grant assigned counsel’s application to be relieved as the defendant’s attorney. Thereafter, the Supreme Court assigned the defendant a new attorney to represent him at the trial.

In its written order, the Supreme Court’s factual findings deviated materially from the only version of the events related at the hearing. The Supreme Court stated that the criminal defendant dropped the weapon before the chase began even though the People’s sole witness clearly testified that the defendant allegedly threw the weapon after a significant period of police pursuit. The Supreme Court concluded that once the detective observed the defendant throw the gun on the ground he was justified in chasing the defendant and subsequently arresting him and recovering the gun. The Supreme Court was never apprised of its apparent factual error and never asked to reconsider its decision in light of the actual testimony adduced at the suppression hearing.

Under no standard of meaningful representation was the defendant here provided with the assistance required by either the Federal or State Constitutions. The assigned counsel’s written motion was based on the wrong facts and he admitted that he was unable to adequately prepare. Although the counsel acknowledged that the submission of post-hearing arguments was necessary, such submissions were never presented to the hearing court. This failure was all the more significant in light of the written decision of the hearing court, which was based on inexplicable factual findings unquestionably more prejudicial to the defendant than the actual hearing testimony. Although the hearing court’s decision was premised on an incorrect version of the underlying facts, this flawed premise was never questioned, and the defendant’s motion to suppress was never decided on the facts actually adduced at the hearing. Given the circumstances present here, the defendant was not provided with meaningful representation at the suppression hearing. Stalking was not involved.

Contrary to the People’s contention, the shortcomings cited by the defendant cannot be justified by any strategic or other legitimate explanations. The assigned counsel made the decision to seek suppression, and there was no advantage to be gained by refraining from advancing any legal position on behalf of his client or by refusing to alert the hearing court to the factual errors in its written decision. The assigned counsel did not choose between applicable legal tactics or make an isolated error in the midst of otherwise competent representation. Rather, he abdicated his overarching duty to advocate the defendant’s cause. Inasmuch as there has been a total failure to present the cause of the accused in any fundamental respect, it cannot be said that the representation the defendant received was effective or meaningful in any sense of those words.

To say that assigned counsel was justified in his complete failure to advocate his client’s cause because his client had little or no chance of success would be tantamount to a harmless error analysis. The assigned counsel’s overall failure to advocate on his client’s behalf before, during, and after the suppression hearing shows the absence of meaningful adversarial representation. In light of such deficiencies, it is not possible to predict the outcome of the suppression hearing from a review of the record, for, as it has been recognized in another context, review by the Court is no substitute for the single-minded advocacy of counsel. Moreover, without meaningful representation, any conclusions drawn from the record are speculative. Under the circumstances, the matter is remitted to the County Supreme Court to hear and report the defendant’s omnibus motion to suppress physical evidence, and hold the appeal in abeyance in the interim.

A person is assumed innocent unless proven guilty, thus everyone deserves a fair trial. If you were accused of possession of a weapon and you want to fight the accusation, consult the Queens County Possession of a Weapon Lawyer or the Queens County Criminal Attorney from Stephen Bilkis and Associates.

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