The People, Respondent,v.Anthony Parson, Jr., Appellant.

Brief

N.Y.April 26, 2016

COURT OF APPEALS STATE OF NEW YORK To Be Argued By: ASHLEY R. LOWRY Requested Time: 15 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ANTHONY PARSON, JR., Defendant-Appellant Indictment No. 02414-2011 APL-20 15-0 0023 BRIEF FOR RESPONDENT FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858—7922 DONNA A. MILLING ASHLEY R. LOWRY Assistant District Attorneys of Counsel TABLE OF CONTENTS Page Table of Authorities i Question Presented 1 Preliminary Statement 2 Point. Defendant received meaningful representation 4 Conclusion. The judgment of conviction should be affirmed in every respect 17 TABLE OF AUTHORITIES PAGES CASES People v Adams, 247 AD2d 819 (4th Dept 1998) appeal denied 91 NY2d 1004 13 People v Aiken, 45 NY2d 394 (1978) . . . . 6, 12 People v Arnold, 98 NY2d 63 (2002) 15 People v Badger, 52 AD3d 231 (1st Dept 2010), lv denied 10 NY3d 955 15 People v Baldi, 54 NY2d 137 (1981) . . 5, 13, 16 People v Bassett, 55 AD3d 1434 (4th Dept 2008), lv denied 11 NY3d 922 13, 15 People v Benevento, 91 NY2d 708 (1998) . . . . 5 People v Benn, 68 NY2d 941 (1986) 13 People v Bleakley, 69 NY2d 490 (1987) . . 12 People v Brunner, 16 NY3d 820 (2011) . . . . 13 People v Caban, 5 NY3d 143 (2005) 16 People v Chestnut, 43 AD2d 260 (3d Dept 1974), aff’d 36 NY2d 971 15 People v Flores, 84 NY2d 184 (1994) . . . 12, 13 People v Ford, 86 NY2d 397 (1995) . . . 4, 12, 16 i People v George, 78 AD3d 728 (2d Dept 2010), lv denied 16 NY3d 859 15 People v Goupil, 104 AD3d 1215 (4th Dept 2013), lv denied 21 NY3d 943 13 People v Harrington, 30 AD3d 1084 (4th Dept 2006) lv denied 7 NY3d 848 15 People v Henry, 95 NY2d 563 (2000) 5 People v Jones, 55 NY2d 771 (1981) 14 People v McGee, 20 NY3d 513 (2013) 14 People v Modica, 64 NY2d 828 (1985) 12 People v Parris, 26 AD3d 393 (2d Dept 2006), lv denied 6 NY3d 851 16 People v Parson, 122 AD3d 1441 (4th Dept) 2, 4, 15 People v Peque, 22 NY3d 168 (2013) 4 People v Petgen, 55 NY2d 529 (1982), rearg denied 57 NY2d 674 4 People v Rivera, 71 NY2d 705 (1988) 5 People v Satterfield, 66 NY2d 796 (1985) . 6, 16 People v Turner, 5 NY3d 481 (2005) 14 People v Williams, 110 AD3d 1458 (4th Dept 2013), lv denied 22 NY3d 1160 (2014) 13 Strickland v Washington, 466 US 668 (1984) . . 5 ii Z U ) ‘i C ) (I ) ‘- < H (V H :i L C ) H V i H o V i H -J H H (I ) U ) [: - C ) F t H V i • Cl ) - U i H CD Vi I- H r t r’ i U ) F- I U ) CD c9 ) U i H U ) [\ J C ) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ANTHONY PARSON, JR., Defendant-Appellant Indictment No. 02414-2011 APL—2 015—00 023 BRIEF FOR RESPONDENT QUESTION PRESENTED Did defense counsel provide meaningful representation before, during and after the suppression hearing in his consistent execution of a two—pronged strategy for suppression of the physical evidence of the vehicle stop and defendant’s statements? —1 — PRELIMINARY STATEMENT This is an appeal from an order of the Appellate Division, Fourth Department, entered November 21, 2014, affirming a judgment of the Erie County Court entered on August 28, 2012 (D’Amico, J.). An indictment was filed charging the defendant with one count of criminal possession of a weapon in the second degree, an armed violent felony (Penal Law § 265.03[3]) arising from an automobile stop in the city of Buffalo on October 30, 2011. A combined Huntley/Ingle hearing was conducted on May 3, 2012. Issuing its decision from the bench, the hearing court ruled that the stop of the vehicle was proper, and defendant’s statements to police were admissible at trial. Defendant pleaded guilty as charged in the indictment to one count of criminal possession of a weapon in the second degree. He was sentenced to the minimum sentence allowable by law, a determinate term of three—and-one-half years imprisonment followed by two and one—half years post-release supervision. The Appellate Division, Fourth Department, affirmed defendant’s conviction (122 AD3d 1441) . The Honorable Eugene A. —2 — Fahey, issued a dissenting opinion, recommending reversal due to ineffective assistance of counsel at the suppression hearing. On January 21, 2015, Justice Fahey, then a Justice of the Appellate Division, granted leave to further this appeal. Defendant is represented on this appeal by David C. Schopp of the Legal Aid Bureau of Buffalo, Inc., Deborah K. Jessey, of Counsel. The People of the State of New York have been represented throughout these proceedings by the District Attorney of Erie County. The defendant is presently serving his sentence. —3 — POINT DEFENDANT RECEIVED MEANINGFUL REPRESENTATION. Defendant contends that defense counsel’s performance during the pretrial proceedings and the suppression hearing deprived him of his constitutional right to meaningful representation. The record refutes this meritless claim. Initially, although the Appellate Division, Fourth Department, reached the merits of this ineffective assistance claim in concluding that defendant contended below that “his plea was infected by the allegedly ineffective assistance” (Parson, 122 AD3d at 1442-1443), by pleading guilty, defendant forfeited appellate review of his claim which does not directly involve the plea negotiation and sentence (see People v Petgen, 55 NY2d 529 [1982], rearg denied 57 NY2d 674) . To the extent that defendant now claims that ineffective assistance of counsel affected the voluntariness of his plea, the record reveals that he received an advantageous plea with a sentence to the minimum amounts of incarceration and post—release supervision, and nothing in the record casts doubt upon the apparent effectiveness of counsel (see People v Ford, 86 NY2d 397, 404 [1995] , overruled on other grounds by People v Peque, 22 NY3d 168 [2013] ) —4 — To prevail on an ineffective assistance of counsel claim, a defendant, under either federal or state standards, must first overcome the presumption of counsel’s competence (People v Rivera, 71 NY2d 705, 708—709 [1988] ; accord Strickland v Washington, 466 US 668, 689 [1984]). Under the Sixth Amendment of the United States Constitution, defendant must show that counsel’s representation was deficient and that the deficiency resulted in prejudice (Strickland, 466 US at 687) . Under the New York standard for the constitutionally guaranteed right to effective assistance of counsel, defendant must show that he was denied “meaningful representation,” and that he was prejudiced as a result (People v Benevento, 91 NY2d 708, 712—714 [1998]; People v Baldi, 54 NY2d 137, 146—147 [1981]; NY Const, art I, § 6). In applying the meaningful representation standard, “courts should not confuse true ineffectiveness with losing trial tactics or unsuccessful attempts to advance the best possible defense” (People v Henry, 95 NY2d 563, 565 [2000]) . Rather, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for counsel’s alleged shortcomings (Rivera, 71 NY2d at 709) . “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” (Benevento, 91 NY2d at 712-713) —5 — A review of this record demonstrates counsel’s consistent two-pronged strategy demanding suppression: the stop of the vehicle was pretextual and investigatory in nature, and the statements were taken in violation of defendant’s privilege against self-incrimination. Counsel requested this relief before the hearing by way of written and oral motions, and again at the conclusion of the hearing. Counsel’s cross—examination also coincided with this strategy -— in the questions he asked, and especially in those he did not (see People v Aiken, 45 NY2d 394, 400 [1978]) . Whether a course chosen by counsel was the best strategy, or even a good one, should not be second—guessed by appellate courts in the prism of hindsight to determine how the defense might have been more effective (see People v Satterfield, 66 NY2d 796, 799—800 [1985] Defendant first retained defense counsel who represented him on this matter from the time of his arraignment through his plea and sentencing (R 39) . Defendant posted five thousand dollars bail in the local criminal court, and counsel convinced the County Court to continue that bail amount, allowing defendant to remain free during the pendency of this case (P. 39—4 0, 75) Counsel requested 45 days to file motions at defendant’s arraignment on February 7, 2012 and served motions dated April 10, —6 — 2012 (R 10, 38) . Defendant’s lengthy motions addressed several areas of relief: discovery and inspection, Brady material, a bill of particulars, a Huntley hearing, inspection of grand jury minutes and instructions and their respective dismissals, notification of Molineux evidence and a Ventirniglia hearing, and a Gruden request (R 10—22). Counsel’s motion included particularized requests related to the People’s proof of defendant’s possession of the weapon and the details of defendant’s post—arrest statements included in the People’s CPL 710.30 notice CR 17—18). Though defense counsel initially failed to include the request for an Ingle hearing in his motion papers, he did specifically request permission to make other and further motions if needed (R 22) . Prior to the hearing, counsel informed the People of his request for an Ingle hearing, with enough time for the People to notify the officer responsible for the traffic stop (R 42) . Then on the date of the hearing, counsel successfully made his official request to the hearing court to allow an Ingle hearing in conjunction with the previously scheduled Huntley hearing (R 42- 43) At the hearing, two Buffalo Police officers testified for the People. Officer Patrick Humiston, an officer with eleven years’ experience, testified to the stop of the vehicle CR 43) —7 Officer Humiston was traveling with a partner that night, Officer William Macy CR 44) . Officer Macy was overseas in Afghanistan at the time of the hearing and therefore, unable to testify CR 55—5 6) Officer Humiston testified that defendant drove past him, and that the gray Impala had a “pretty big” crack across most of the front windshield, and something hanging from its rear-view mirror, as well CR 44—45) Though it was dark at 10:55 PM, Officer Humiston affirmed that the area was well—lit and that nothing prevented him from seeing the crack in the windshield CR 45) Officer Humiston activated his cruiser’s lights and initiated a stop of the vehicle, which pulled over in a normal manner CR 45) Upon Officer Humiston’s approach of the gray Impala, he noticed only one occupant: defendant in the driver’s seat CR 45- 46) . When defendant rolled down his window, Officer Humiston immediately smelled burnt marihuana CR 46) . Officer Humiston asked defendant for his documents and mentioned the smell of marihuana — - something to the effect of “I smell marihuana. . . Are you smoking marihuana or did you smoke marihuana or do you have marihuana” CR 46, 54) . Defendant replied “yes, he had been smoking” CR 46) At the point at which defendant admitted to smoking marihuana, and Officer Macy smelled the marihuana as well, Officer —8 Macy asked defendant to exit the vehicle (R 47) . Counsel objected to Officer Humiston’s statement that Officer Macy “also smelled marihuana” but the court overruled the objection CR 47) . Officer Macy patted defendant down, discovering a bag of marihuana in the front right pocket of his pants CR 47) . After searching defendant’s person, the officers searched the vehicle, finding one marihuana blunt in the center console, another in the rear of the vehicle on the driver’s side, and a loaded .22 caliber pistol on the rear floor on the passenger side (R 47-48) On cross-examination, counsel consistently called into question the credibility of Officer Humiston, first disputing the distance Officer Humiston had to view the oncoming car (R 4 9-50) Counsel then tested Officer Humiston’ s believability by focusing on the unknown item hanging in the rearview mirror, not the cracked windshield CR 50) . However, Officer Humiston repeated his testimony, noting that both violations justified his pulling defendant over CR 50) . Counsel questioned Officer Humiston on the lighting conditions at 11:00 PM, and if it were bright “enough” to “be able to see the cracked windshield” CR 50—51) . Counsel asked Officer Humiston if he saw “anything in the vehicle at that time”, to which he answered “no” CR 51) —9 — Officer Humiston reiterated to counsel that the officers searched the vehicle after they searched defendant, finding marihuana on his person (R 51—52) . Counsel probed Officer Humiston on the thoroughness of the search of the backseat of the car, wherein Officer Humiston admitted that he had to look underneath a pile of clothing to discover the weapon (R 52—53) . Counsel also established that neither officer read defendant his Miranda warnings at the time of the search CR 53) The court asked a few questions concerning defendant’s statement about the marihuana, revealing that the court believed that those statements were the ones sought to be suppressed as a result of the Huntley hearing (R 53—54) . When the prosecutor informed the court of an additional witness being called to testify as to the CPL 710.30 statements, counsel protested, stating “that wasn’t in the 710.30, Judge” (R 54) . The court then acknowledged the second witness and replied “okay, that’s all I need,” and the hearing continued (R 54) Next, Lieutenant Melinda Jones testified as to defendant’s post-Miranda statements at the scene. A twelve-year veteran of the Buffalo Police, Lt. Jones responded to Officer Macy’s request to Mirandize defendant (R 55, 56—57) . Reciting the warnings from memory, defendant affirmed that he understood those — 10 rights and agreed to speak with her (R 57-58) . Defendant explained that the car was not his, but a friend’s who was in the army (R 58) . He had been driving the car for a few months, and did not know whose gun it was CR 58) Lt. Jones made no threats or promises in speaking with defendant CR 59) When Lt. Jones inquired about the gun, defendant claimed that he had “people in the car” earlier but was unable to articulate to the lieutenant who those people were (R 58) . Lt. Jones then asked defendant if he had allowed strangers in his vehicle, since he could not identify the people in the car CR 58— 59) At that point, defendant did not respond and refused to answer any more questions, and Lt. Jones asked nothing further (R 59) At no time did defendant ask to speak with a lawyer (R 59) On cross-examination, counsel delved into Lt. Jones’ delivery of the Miranda warnings, revealing that Lt. Jones recited the warnings in their entirety before receiving a response from defendant while he sat in the back of the other patrol car (R 60— 61) . Counsel then questioned Lt. Jones about the smell of marihuana; Lt. Jones stated that she did not smell any marihuana, but that she was not near the vehicle defendant had been driving CR 62) . Counsel was able to elicit from Lt. Jones that defendant did not appear as if he had been using marihuana (R 62) - 11 In his closing argument, counsel argued that the stop of the vehicle was pre-textual and investigatory in nature, challenging Officer Humiston’s credibility and his stop of defendant based on the limited testimony CR 63-64) . Regarding the Huntley hearing, counsel was forced to look past the proper Miranda procedure executed by Lt. Jones and creatively relied upon the smell of marihuana and evidence of its recent use to argue that defendant was therefore unable to understand the waiver of his rights before agreeing to speak with Lt. Jones CR 64) Though defense counsel’s closing argument was brief, it provided two clear reasons for suppression of the physical evidence of the stop and the statements. Had the hearing court -- whose “opportunity to view the witnesses, hear the testimony and observe demeanor” which is entitled to great deference (People v Bleakley, 69 NY2d 490, 495 [1987]) —- agreed with defense counsel’s argument that Officer Humiston was incredible, suppression might have been granted. This two-pronged strategy provided defendant the fair hearing to which he was Constitutionally guaranteed, not a “perfect” one (People v Flores, 84 NY2d 184, 187 [1994]; Ford, 86 NY2d at 404; People v Modica, 64 NY2d 828, 829 [1985]; Aiken, 45 NY2d at 401) Defendant overlooks counsel’s consistent pretrial — 12 strategy and instead focuses on the potential of a different cross- examination in claiming ineffective assistance. “[A] simple disagreement with strategies, tactics or the scope of possible cross—examination, weighed long after the trial, does not suffice” (Flores, 84 NY2d at 187; see People v Benn, 68 NY2d 941, 942 [1986]) . Defendant’s brief repeatedly invites this Court to speculate as to whether “a more vigorous cross-examination might have undermined the credibility of the People’s witness[es]” (People v Williams, 110 AD3d 1458, 1459—1460 [4th Dept 2013], lv denied 22 NY3d 1160 [2014] [internal citations omitted]) . This does not establish ineffectiveness of counsel (see Id.; People v Goupil, 104 AD3d 1215, 1217 [4th Dept 2013] , lv denied 21 NY3d 943; People v Bassett, 55 AD3d 1434, 1438 [4th Dept 2008], lv denied 11 NY3d 922; People v Adams, 247 AD2d 819, 819 [4th Dept 1998], appeal denied 91 NY2d 1004; see generally Baldi, 54 NY2d at 146—147) This is not a situation where defense counsel “neglected to raise a ‘clear—cut and completely dispositive’” defense to the charge (People v Brunner, 16 NY3d 820, 821 [2011], citing People v Turner, 5 NY3d 476, 481 [2005]) . Rather, defendant lists hypothetical cross—examination questions directed at witness credibility that may or may not have had any bearing on the court’s decision to suppress. Counsel did ask questions about the lighting and circumstances of the stop (R 49-51); to characterize “counsel’s — 13 failure to ask any questions” as an “egregious and harmful” error is misleading (Defendant’s brief at 18; see Turner, 5 NY3d at 481). Because the arguments identified on appeal are “not fairly characterized as clear—cut and dispositive in defendant’s favor,” counsel’s cross—examination was not ineffective (People vMcGee, 20 NY3d 513 [2013] As a whole, “counsel did cross—examine when there was something to cross-examine about” while supporting his strategy (People v Jones, 55 NY2d 771, 773 [1981]) . Defense counsel did not waste his time asking questions to establish the veteran police officer’s training and experience with the distinct odor of burnt marihuana, particularly where defendant admitted smoking and two blunts were recovered in the vehicle search. Similarly, defense counsel avoided asking questions which would have further verified the elements of the traffic violations. Defense counsel had no burden to establish this criteria and he undercut the reliability of the arresting officer in creating a minimal record. While the hearing court asked a few questions of each of the witnesses, the questions were recitations or clarifications of the questions already posed by the attorneys during the hearing. The court’s questioning was limited in scope and length, did not impeach the witnesses or pursue new areas of inquiry, and did not — 14 assume counsel’s advocacy role (cf. People v Arnold, 98 NY2d 63, 67-68 [2002]) . Upon close inspection, the responses to each question appear almost verbatim in the court’s decision that it delivered from the bench at the conclusion of the hearing (R 43, 53—54, 60, 62—63, 64—66) Defendant notes that the Appellate Division determined that defendant’s contentions regarding the search of defendant’s person and the vehicle were not preserved, and declined to review them in the interest of justice (Parson, 122 AD3d at 1442) However, “[d]eprivation of appellate review . . . does not per se establish ineffective assistance of counsel . . . but, rather, a defendant must also show that his or her contention would be meritorious on appellate review,” (Bassett, 55 AD3d at 1438 [citations omitted]) . Defendant fails to make that showing. It is well-settled that “the smell of marihuana smoke, with nothing more, can be sufficient to provide police officers with probable cause to search an automobile and its occupants” (People v Chestnut, 43 AD2d 260, 261 [3d Dept 1974], aff’d 36 NY2d 971; People v George, 78 AD3d 728, 728—29 [2d Dept 2010] , lv denied 16 NY3d 859; People v Badger, 52 AD3d 231, 232 [1st Dept 2010], lv denied 10 NY3d 955; People v Harrington, 30 AD3d 1084, 1084—85 [4th Dept 2006], lv denied 7 NY3d 848) . That means regardless of - 15 - Officer Humiston’s exact inquiry about the burnt marihuana odor during the automobile stop, the officers had probable cause to search (see Id.). Moreover, no Miranda warnings were required at the time defendant admitted that he had smoked marihuana because he was not in custody (People v Parris, 26 AD3d 393, 394—395 [2d Dept 2006], lv denied 6 NY3d 851) . “There can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702) Viewed objectively, the record “reveal[s] the existence of a trial strategy that might well have been pursued by a reasonably competent attorney” (Satterfield, 66 NY2d at 799) Counsel here was a consistent advocate on defendant’s behalf and engaged in strategic cross-examinations of the prosecution’s witnesses. While the court did not suppress the evidence or statements, counsel was still able to convince the court to sentence defendant to the minimum amount allowed by law after pleading guilty as charged (see Ford, 86 NY2d at 404) . Defendant does not overcome the strong presumption that defense counsel rendered effective assistance (see .Baldi, 54 NY2d 137) — 16 — CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE AFFIRMED IN EVERY RESPECT. Respectfully submitted, FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 ASHLEY EL) LOWRY Assistant District A.)orney Of Counsel June 3, 2015 — 17 - STATE OF NEW YORK COURT OF APPEALS A FF1 DAV IT OF SERVICE Indictment No. 02414—2011 APL—2015—00023 KRISTY A. SWANSON, being duly sworn, deposes and says: That she is over the age of twenty-one (21) years and is employed by the County of Erie at the Erie County District Attorney’s Office; that on June 4, 2015, she served three (3) copies of the within Brief for Respondent upon Deborah Jessey, Esq., attorney for defendant—appellant, addressed to Deborah Jessey, Esq. at The Legal Aid Bureau of Buffalo, Inc., 237 Main Street - Suite 1602, Buffalo, New York 14203, by depositing a true copy of same, securely enclosed in a postpaid wrapper, in a Post Office box regularly maintained by the United States Postal Service at the Erie County Hall in the City of Buffalo, New York in the above—referenced matter. KR Subscribed and sworn to before on June , 2015. 1Lu • DONNA A. MILLING Notary Public, State ofE’ew York Qualified in Erie County My Commission Expires February 9, 2016. THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ANTHONY PARSON, JR., Appellant STATE OF NEW YORK COUNTY OF ERIE ) SS: CITY OF BUFFALO SNSON