The People, Respondent,v.Anthony Parson, Jr., Appellant.BriefN.Y.April 26, 2016 To be argued by: DEBORAH K. JESSEY Buffalo, New York (716) 853-9555 Estimated time: 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs ANTHONY PARSON, JR. Appellant. REPLY BRIEF FOR APPELLANT Erie County Indictment No. 2011-2414 Docket No. KA 13-00656 DAVID C. SCHOPP Attorney for Appellant THE LEGAL AID BUREAU OF BUFFALO, INC. 237 Main Street - Suite 1602 Buffalo, New York 14203 TIMOTHY P. MURPHY Chief Attorney Appeals and Post-Conviction Unit DEBORAH K. JESSEY, of Counsel Brief Completed: June 26, 2015 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................... ii QUESTIONS PRESENTED ........................................................................... 1 PRELIMINARY STATEMENT .................................................................... 2 ARGUMENT .................................................................................................... 3 POINT I ............................................................................................................ 3 APPELLANT WAS DENIED DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL (NY CONST., ARTICLE I, § 6; US CONST., AMEND. VI) BY DEFENSE COUNSEL’S DEFICIENT PERFORMANCE AT THE SUPPRESSION HEARING. ............................................................. 3 CONCLUSION .............................................................................................. 10 ii TABLE OF AUTHORITIES CASES People v. Brunner, 16 NY3d 820 (2011) ..........................................................7 People v. Chestnut, 36 NY2d 971 (1975). ........................................................8 People v. Clark, 41 NY2d 612 (1977). ..............................................................8 People v. Cuffie, 109 AD3d 1200 (4 th Dept 2013) ...........................................8 People v. Ford, 86 NY2d 397 (1995) ................................................................5 People v. Hansen, 95 NY2d 227 (2000) ...........................................................4 People v. Jarvis, 25 NY3d 968 (2015). .............................................................7 People v. Petgen, 55 NY2d 529 (1982) .............................................................3 People v. Rasul, 121 AD3d 1413 (3 rd Dept 2014) ............................................8 People v. Rivera, 71 NY2d 705 (1988) .............................................................7 People v. Robinson, 97 NY2d 341 (2001) ........................................................6 People v. Taylor, 65 NY2d 1 (1985) .................................................................4 People v. Turner, 5 NY3d 476 (2005). ......................................................... 7, 9 Whren v. United States, 517 U.S. 806 (1996) ...................................................6 iii STATUTES CPL 710.30 (1)(a) ..............................................................................................7 CPL 710.30 (2). .................................................................................................7 CONSTITUTIONAL PROVISIONS NY Const. Art 1, § 6 ..........................................................................................3 US Const., Amend. 6 .........................................................................................3 1 QUESTIONS PRESENTED 1. Was appellant deprived of his state and federal constitutional right to meaningful representation by defense counsel’s deficient performance during the pretrial proceedings and the suppression hearing? Answer: The Appellate Division found that appellant was not deprived of his right to the effective assistance of counsel. 2 PRELIMINARY STATEMENT Appellant reiterates all statements of fact and issues raised in his previously filed brief and requests that the Court consider the arguments set forth below, relative to those issues, as a reply to the brief by the Erie County District Attorney’s Office. 3 ARGUMENT POINT I APPELLANT WAS DENIED DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL (NY CONST., ARTICLE I, § 6; US CONST., AMEND. VI) BY DEFENSE COUNSEL’S DEFICIENT PERFORMANCE AT THE SUPPRESSION HEARING. At page four (4) of its brief, respondent raises preservation as a bar to this Court’s review of the instant matter. Respondent’s reliance on People v. Petgen, 55 NY2d 529 (1982) is misplaced. Petgen found that an ineffective assistance of counsel claim was unpreserved for review, where the alleged ineffectiveness was caused by inaction of trial counsel who was later replaced. This Court found that the second attorney, fully apprised of the alleged derelictions, competently ushered appellant through the plea process, thus avoiding any taint of prior alleged ineffectiveness. The subsequent plea of guilty prevented appellate review of this issue. The instant case can be distinguished. 4 Defects implicating the integrity of the process, or rights of a constitutional dimension that go to the very heart of the process, survive a guilty plea (see also People v. Hansen, 95 NY2d 227, 230-231 [2000][protestation regarding pretrial evidentiary error does not survive a guilty plea]; People v. Taylor, 65 NY2d 1, 5 [1985] [rights of constitutional dimension survive plea]). Here, counsel’s ineffective representation at the suppression proceedings resulted in a denial of the motion to suppress the gun, drugs and pre-Miranda unnoticed statement by appellant (see argument infra, and principal brief). Denial of suppression affected the voluntariness of the plea, in that appellant would have to have made different decisions had all or part of the motion been granted. Because the ineffective assistance of counsel infected the plea process and went to the very heart of the process, the guilty plea cannot serve as a waiver of appellant’s appellate rights. As fully outlined in our principal brief, appellant alleges transgressions which deprived him of the right to “meaningful representation” as guaranteed by the New York and United States Constitutions. 5 Further, the People inaccurately claim that appellant received an advantageous plea (see People v. Ford, 86 NY2d 397, 404 [1995] [where plea to manslaughter satisfied all counts in the indictment]). Appellant in fact pleaded to the indictment as charged, criminal possession of a weapon in the second degree. The record reflects no sentence commitment at the time of the plea; therefore, the actual sentence imposed (the minimum mandatory three and one half years imprisonment) is of no moment in this analysis. At pages five (5) and six (6) of its brief, respondent argues that trial counsel was effective, in part, because of his superb trial strategy. Respondent then identifies the two-pronged strategy as such: “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” (respondent’s brief, page 6). Appellant agrees that the defense focused on these issues. However, these were not the proper issues to address in the suppression hearing. By identifying the defense’s attack as centered on these two issues, the People effectively concede that counsel failed to identify the three most important suppression issues: the illegality of the stop, the lack of 710.30 notice specific to the alleged pre-Miranda statement, and the infirm 6 reliance on a perceived smell to support the vehicle search. Appellant will address these issues in turn. Respondent appears to find reasonable defense counsel’s argument that the car stop was pretextual, and therefore unlawful. The flaw here, is that the defense was wrong on the law: this Court, in People v. Robinson, 97 NY2d 341, 358 [2001], instructed that pretextual traffic stops, when based on probable cause to believe that a motorist committed a traffic infraction, do not exceed constitutional constraints. Counsel’s argument therefore, had no chance of success, since this Court long ago adopted the holding of Whren v. United States, 517 U.S. 806, 810 [1996], that where law enforcement has probable cause to detain a person for a VTL violation, that seizure does not exceed constitutional safeguards. Respondent further applauds counsel’s attack on the voluntariness of appellant’s post-Miranda statement. This statement was so innocuous, given that appellant disavowed knowledge of the gun, that it was unworthy of counsel’s suppression efforts. As appellant emphasized in his principal brief, it was the pre-Miranda purported affirmative response to the officer’s pointed question regarding marijuana that, had it been precluded, would have benefited appellant. Preclusion of this statement may well have 7 been granted, due to noncompliance with the notice requirement contained in CPL 710.30[1][a], had counsel alerted on the issue. At page 10, respondent portrays counsel’s inaction in the face of the previously undisclosed inculpatory statement, as entering an objection to the witness’ testimony. This is not so. When the transcript is read in its entirety, it is clear that counsel failed to object to this unnoticed purported statement to the arresting officer. There is no reasonable strategic benefit for counsel’s lapse in this regard (People v. Rivera, 71 NY2d 705, 709 [1988]), and this, in addition to counsel’s other failings, resulted in less than meaningful representation (see People v. Jarvis, 25 NY3d 968, 969 [2015]). Moreover, because the People failed to comply with the statutorily mandated disclosure of the statement within fifteen (15) days of arraignment, counsel should have moved to preclude the testimonial evidence regarding this alleged verbal exchange (CPL 710.30 [2]). A motion for preclusion does not require a showing of prejudice, and such motions are often successfully granted by trial courts. This issue is “clear-cut and completely dispositive” in appellant’s favor (People v. Brunner, 16 NY3d 820, 821 [2011] citing People v. Turner, 5 NY3d 476, 478 [2005]). 8 Counsel’s diluted comment regarding the lack of CPL 710.30 notice was deficient: a motion for preclusion and a ruling from the court was necessary to ensure appellant’s right to a fair trial, and to preserve the issue for further review (see People v. Clark, 41 NY2d 612, 616 [1977]). This Court has found that a police officer, trained in the olfactory detection of marijuana, can rely on their expertise in determining that probable cause exists when they detect the objectionable scent subsequent to an automobile stop (People v. Chestnut, 36 NY2d 971, 972- 973 [1975]). Implicit in Chestnut and its progeny, is that the police officers must be trained in the smell of marijuana to make their assessment reliable (People v. Chestnut, 43 AD2d 260, 262 [3 rd Dept 1974]). In People v. Rasul, 121 AD3d 1413, 1416 [3 rd Dept 2014], the Court drew a distinction between the drug recognition officer and the officer who lacked drug recognition training. The Courts have consistently found believable the testimony of officers trained in detecting the scent of marijuana (see People v. Cuffie, 109 AD3d 1200, 1201 [4 th Dept 2013]); therefore counsel was obligated to explore the witness’ credentials, in hopes of distinguishing the instant case for the hearing court. 9 Further, the prosecuting attorney failed to elicit any testimony from the officer regarding his training in drug detection, or even his description of the purported olfactory sensation. As testimony was conclusory, the record was barren of evidence to support the alleged scent of marijuana. Counsel’s failure to identify this deficiency in the People’s offer of proof was yet another missed opportunity to defend appellant. At page fourteen (14) of her brief, respondent characterizes appellant’s statement regarding counsel’s failure to elicit new or elucidating testimony as “misleading”. Reading the referenced page (page 18 of the Brief for Appellant) in its entirety supports appellant’s assertion that the questions posed by the defense were a simple reiteration of the prosecutor’s questions, which failed to fully elucidate the circumstances of the stop. Counsel failed to pose questions which may have elicited any meaningful information. Viewing counsel’s performance in totality, it must be found to be deficient. Preclusion of appellant’s alleged pre-Miranda statements may well have led to suppression of the contraband found in the automobile (see Turner, 5 NY3d at 481). 10 CONCLUSION WHEREFORE, appellant Anthony Parson, Jr. requests that this Court find that he was denied the effective assistance of counsel, and, as such, requests that this Court vacate the plea, and grant such other relief as to this Court seems just and proper. Respectfully submitted, ANTHONY PARSON, JR., APPELLANT By his Attorney DAVID C. SCHOPP, Chief Executive Officer LEGAL AID BUREAU OF BUFFALO, INC. Dated: June 26, 2015 Buffalo, New York _________________________________________ DEBORAH K. JESSEY, of Counsel