The People, Respondent,v.Leroy Carver, Appellant.

Brief

N.Y.April 26, 2016

To Be Argued By: Janet C. Somes Time Requested: 10 Minutes APL-2015-00068 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- LEROY CARVER, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANET C. SOMES Senior Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4329 Fax: (585) 753-4234 Date Completed: June 15, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i-viii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 SUMMARY OF ARGUMENT 3 STATEMENT OF FACTS 5 ARGUMENT 12 Mr. Carver Was Denied Effective Assistance Of Counsel. 12 A. Introduction 12 B. Federal And New York Standards Of Review 15 C. Counsel’s Representation Fell Below An Objective Standard Of Reasonableness (Strickland) And Short Of Meaningfulness (Baldi). 20 1. Counsel’s failure to raise a colorable suppression issue 22 2. Counsel’s failure to review, understand or counter the prosecution’s DNA evidence 40 3. Counsel’s failure to object to prosecutorial misconduct aimed at undercutting Mr. Carver’s testimony 47 4. Counsel’s failure to understand and accurately advise Mr. Carver regarding his right to challenge the constitutionality of his predicate conviction 51 5. Counsel’s failure to advocate for Mr. Carver at sentencing 54 D. Counsel’s Deficient Representation Resulted In A Break-Down Of The Adversarial Process And An Unfair Trial. 59 E. Conclusion 63 CONCLUSION 64 i TABLE OF AUTHORITIES Federal Cases Brendlin v California, 551 US 249 [2007] ........................................................................................... 27 Burgett v Texas, 389 US 109 [1967] ........................................................................................... 53 Cardoza v Rock, 731 F3d 169 [2d Cir 2013] ............................................................................... 45 Coles v Peyton, 389 F2d 224 [4th Cir 1968] .............................................................................. 42 Dunaway v New York, 442 US 200 [1979] ........................................................................................... 26 Gadsden v United States, 223 F2d 627 [DC Cir 1955] ............................................................................. 51 Gersten v Senkowski, 426 F3d 588 [2d Cir 2005] ......................................................................... 17, 18 Henry v Poole, 409 F3d 48 [2d Cir 2005] ..................................................................... 17, 18, 19 Kimmelman v Morrison, 477 US 365 [1986] ........................................................................................... 31 Knott v Mabry, 671 F2d 1208 [8th Cir 1982] ............................................................................ 43 Mapp v Ohio, 367 US 643 [1961] ........................................................................................... 22 Michel v Louisiana, 350 US 91 [1955] ............................................................................................. 20 Pavel v Hollins, 261 F3d 210 [2d Cir 2001] ............................................................................... 21 ii Powell v Alabama, 287 US 45 [1932] ............................................................................................. 20 Rosario v Ercole, 601 F3d 118 [2d Cir 2010] ......................................................................... 17, 19 Strickland v Washington, 466 US 668 [1984] .................................................................................... passim United States ex rel. Williams v Twomey, 510 F2d 634 [7th Cir 1975] .............................................................................. 63 United States v Cronic, 466 US 648 [1984] ............................................................................... 13, 60, 63 Von Moltke v Gillies, 332 US 708, 721 [1948] ........................................................................................... 45 Williams v Taylor, 529 US 362 [2000] ..................................................................................... 16, 31 State Cases Hurrell-Harring v State of New York, 15 NY3d 8 [2010] ............................................................................................. 58 In re Jeffrey V., 82 NY2d 121 [1993] ......................................................................................... 15 Marraccini v Ryan, 17 NY3d 83 [2011] ........................................................................................... 26 People v Aiken, 45 NY2d 394 [1978] ......................................................................................... 15 People v Anderson, 16 NY2d 282 [1965] ......................................................................................... 22 People v Arnold, 85 AD3d 1330 [3d Dept 2011] ......................................................................... 61 People v Bailey, 58 NY2d 272 [1983] ......................................................................................... 47 iii People v Baldi, 54 NY2d 137 [1981] .................................................................................. passim People v Battaglia, 56 NY2d 558 [1982] ......................................................................................... 26 People v Battaglia, 82 AD2d 389 [4th Dept 1981] .......................................................................... 26 People v Bedell, 114 AD3d 1153 [4th Dept 2014] ...................................................................... 29 People v Benevento, 91 NY2d 708 [1998] .................................................................................. passim People v Bennett, 29 NY2d 462 [1972] ............................................................................. 20, 37, 42 People v Berrios, 298 AD2d 597 [2d Dept 2002] ......................................................................... 47 People v Bush, 107 AD3d 1302 [3d Dept 2013] ....................................................................... 61 People v Caban, 5 NY3d 143 [2005] ............................................................................... 17, 30, 32 People v Campbell, 281 AD2d 488 [2d Dept 2001] ........................................................................ 56 People v Campbell, 245 AD2d 191 [1st Dept 1997] ........................................................................ 26 People v Carnevale, 101 AD3d 1375 [3d Dept 2012] ................................................................. 24, 30 People v Carver, 124 AD3d 1276 [4th Dept 2015] ................................................................ 10, 11 People v Church, 287 AD2d 788 [3d Dept 2001] ......................................................................... 57 iv People v Claudio, 83 NY2d 76 [1993] ..................................................................................... 13, 59 People v Clermont, 22 NY3d 931 [2014] ................................................................. 23, 28, 30, 31, 39 People v De Bour, 40 NY2d 210 [1976] ................................................................................... 25, 26 People v Diggins, 11 NY3d 518 [2008] ......................................................................................... 53 People v Donovan, 13 NY2d 148 [1963] ......................................................................................... 14 People v Droz, 39 NY2d 457 [1976] ................................................................................... 20, 38 People v Edmond, 84 AD2d 938 [4th Dept 1981] .......................................................................... 58 People v Felder, 47 NY2d 287 [1979] ......................................................................................... 15 People v Fisher, 18 NY3d 964 [2012] ............................................................................. 35, 47, 50 People v Flores, 84 NY2d 184 [1994] ......................................................................................... 61 People v Gonzalez, 43 AD2d 914 [1st Dept 1974] .......................................................................... 56 People v Gordian, 99 AD3d 538 [1st Dept 2012] .......................................................................... 45 People v Grice, 100 AD2d 419 [4th Dept 1984] .................................................................. 47, 50 People v Harris, 61 NY2d 9 [1983] ............................................................................................. 53 v People v Henriquez, 3 NY3d 210 [2004] ........................................................................................... 60 People v Henry, 95 NY2d 563 [2000] ......................................................................................... 18 People v Hicks, 68 NY2d 234 [1986] ......................................................................................... 26 People v Hobot, 84 NY2d 1021 [1995] ....................................................................................... 17 People v Holmes, 81 NY2d 1056 [1993] ....................................................................................... 26 People v Jackson, 48 AD3d 891 [3d Dept] .................................................................................... 30 People v Jones, 55 NY2d 771 [1981] ........................................................................................... 1 People v Jones, 145 AD2d 648 [2d Dept 1988] ......................................................................... 22 People v Layou, 114 AD3d 1195 [4th Dept 2014] ...................................................................... 29 People v Lewis, 2 NY3d 224 [2004] ............................................................................................. 1 People v Logan, 263 AD2d 397 [1st Dept 1999] ........................................................................ 44 People v Lombardi, 18 AD2d 177 [2d Dept 1963] ..................................................................... 22, 23 People v Mendoza, 82 NY2d 415 [1993] ......................................................................................... 39 People v Millan, 69 NY2d 514 [1987] .................................................................................... 27, 32 People v Moore, 186 AD2d 591 [2d Dept 1992] ......................................................................... 39 vi People v Newell, 271 AD2d 873 [3d Dept 2000] ......................................................................... 56 People v Nixon, 21 NY2d 338 [1967] ......................................................................................... 46 People v Oathout, 21 NY3d 127 [2013] ............................................................................. 15, 61, 62 People v Oliveras, 21 NY3d 339 [2013] ....................................................................... 37, 38, 42, 43 People v Peque, 22 NY3d 168 [2013] ......................................................................................... 63 People v Rivera, 71 NY2d 705 [1988] ................................................................. 23, 34, 35, 36, 38 People v Ryan, 12 NY3d 28 [2009] ..................................................................................... 25, 26 People v Sachs, 280 AD2d 966 [4th Dept 2001] ........................................................................ 54 People v Sanin, 84 AD2d 681 [4th Dept 1981] .......................................................................... 29 People v Santiago, 91 AD3d 438 [1st Dept 2012] .......................................................................... 53 People v Savage, 50 NY2d 673 [1980] ................................................................................... 47, 48 People v Schulz, 4 NY3d 521 [2005] ........................................................................................... 13 People v Shanis, 36 NY2d 697 [1975] ......................................................................................... 50 People v Sierra, 83 NY2d 928 [1994] ......................................................................................... 26 People v Sobotker, 43 NY2d 559 [1978] ......................................................................................... 25 vii People v Strempack, 71 NY2d 1015 [1988] ....................................................................................... 36 People v Stultz, 2 NY3d 277 [2004] ........................................................................................... 30 People v Turner, 5 NY3d 476 [2005] ................................................................... 16, 17, 30, 34, 35 People v Vasquez, 20 NY3d 461 [2013] ................................................................................... 32, 33 People v Vauss, 149 AD2d 924 [4th Dept 1989] ........................................................................ 29 People v Washington, 96 AD2d 996 [3d Dept 1983] ........................................................................... 58 People v Williams, 17 NY3d 834 [2011] ................................................................................... 24, 26 People v Wood, 108 AD3d 932 [3d Dept 2013] ......................................................................... 54 State v Johnson, 365 NJ Super 27 [Super Ct 2003] .................................................................... 32 State Statutes Criminal Procedure Law § 240.20 (c) .................................................................... 42 Criminal Procedure Law § 400.15 (8) ................................................................... 52 Criminal Procedure Law § 400.21 ......................................................................... 53 Criminal Procedure Law § 450.90 (1) ..................................................................... 1 Criminal Procedure Law § 710.20 ......................................................................... 22 Criminal Procedure Law § 710.30 ................................................................... 32, 33 Criminal Procedure Law § 710.60 ......................................................................... 39 Criminal Procedure Law § 710.60 (3) ................................................................... 39 Penal Law § 70.04 (3) ............................................................................................ 54 Vehicle and Traffic Law § 375 (12-a) (b) (1) ........................................................ 27 viii Vehicle and Traffic Law § 375 (30) ....................................................................... 27 Constitutional Provisions NY Const art I, § 6 ....................................................................................... 4, 13, 15 NY Const art I, § 12 ................................................................................................ 22 US Const Amend VI .......................................................................................... 4, 15 US Const Amends, XIV ......................................................................................... 13 Other ABA Standards for Criminal Justice, 4-1.2 (f) (3d ed 1993) .................................. 46 ABA Standards for Criminal Justice, 4-4.1 (3d ed 1993) ........................................ 38 1 PRELIMINARY STATEMENT By permission of the Honorable Gerald J. Whalen, Associate Justice of the Appellate Division, Fourth Department, granted March 17, 2015, appellant Leroy Carver appeals from an order of the Appellate Division, Fourth Department, dated January 2, 2015. The order affirmed a judgment of the Supreme Court, Monroe County, rendered on April 22, 2010, convicting appellant, after a jury trial, of two counts of burglary in the second degree, and sentencing him to concurrent prison terms of 15 years, plus five years post-release supervision. On May 5, 2015, this Court granted appellant poor person relief and assigned Timothy Donaher, Esq., Monroe County Public Defender, as appellate counsel. N o stay has been sought. A ppellant is incarcerated pursuant to the judgment. This Court has jurisdiction, pursuant to CPL 450.90(1), to entertain this appeal and review the issue raised. Appellant’s ineffective assistance of counsel argument does not require preservation (People v Lewis, 2 NY3d 224, 228-229, n 2 [2004]; People v Jones, 55 NY2d 771 [1981].) 2 QUESTION PRESENTED Was Mr. Carver denied effective assistance of counsel where defense counsel:  failed to raise a colorable suppression issue?  demonstrated his profound and fundamental misunderstanding of scientific evidence critical to the prosecution’s case?  repeatedly failed to object to improper and highly prejudicial conduct by the prosecutor?  deprived his client the opportunity to make a constitutional challenge to his prior conviction?  failed to advocate for leniency, or even a sentence less than the maximum, when his client facing a range of seven to fifteen years in prison? Court below: No 3 SUMMARY OF ARGUMENT Mr. Carver was denied meaningful representation and a fair trial, not by a single error, but rather by a series of errors. Mr. Carver’s attorney did not subject the prosecution’s case to the “crucible of meaningful adversarial testing” (see Strickland v Washington, 466 US 668, 656-657 [1984].) Indeed, he proved to be unfamiliar with applicable law and with facts critical to the case, causing extreme prejudice and a break-down of the adversarial testing process. The travesty began with counsel’s inexcusable failure to file a suppression motion to challenge the police acquisition of crucial evidence. The record reveals a reasonable basis for attacking both the stop of the motor vehicle in which Mr. Carver was a passenger, and the warrantless arrest and search of Mr. Carver (resulting in the seizure of important evidence from Mr. Carver’s pocket). A successful challenge to the stop would have destroyed the prosecution’s case. A successful challenge to the seizure of evidence from Mr. Carver’s person would have caused substantial damage. The travesty continued with counsel’s opening statement during which he demonstrated a profoundly flawed understanding of the prosecution’s DNA evidence. With no fingerprints left at the scene of the burglaries (suggesting that the culprits had worn gloves), the prosecutor promised (and delivered) DNA 4 evidence that created a probable link between Mr. Carver’s DNA and the DNA located inside of gloves found in the car. D efense counsel’s opening statement showed that he misunderstood the DNA e vidence to be strongly in his client’s favor, when in fact, it was the opposite, and very prejudicial. After counsel failed to object to the prosecutor’s improper questioning of Mr. Carver and to the prosecutor’s improper statements in summation, the jury found Mr. Carver guilty as charged. At sentencing, Mr. Carver faced an increased prison term because of his prior felony. When Mr. Carver was asked whether he had any constitutional challenges to t he prior felony conviction, counsel’s unfamiliarity with that area of the law was exposed. Counsel incorrectly explained to Mr. Carver that the question the court had just asked was whether there were any appeals pending on that prior conviction. The travesty ended with counsel’s complete failure to offer any advocacy at the crucial moment of sentencing. The adversarial process envisioned by the Sixth Amendment, and necessary for a fair proceeding (Strickland, 466 US at 656) was cut to the quick by counsel’s errors, blunders and lack of familiarity with the law and facts. Under either the Strickland or Baldi (54 NY2d 137 [1981]) standard of review, Mr. Carver did not receive the effective representation guaranteed him under the United States and New York constitution (US Const, 6th Amend; NY Const, art I, § 6). 5 STATEMENT OF FACTS On July 25, 2009, Leroy Carver was a front seat passenger in a car stopped by Fairport Village Police Officer Matthew Nielsen. The sole reason for the stop of the car, according to the officer’s trial testimony, was his observation of a vehicle and traffic violation – a windshield obstructed by something hanging from the rear-view mirror and a circular sticker (R 232, 341). Both the driver and passenger (Mr. Carver) were unable to produce identification, but did give the officer names, dates of birth and addresses. T he officer then engaged the pair in conversation about where they had been and what they had been doing (R 239). He saw duffel bags in the back seat, with the edge of a laptop sticking out of one, and a pair of gloves on top of another (R 241-242). After returning to the police cruiser to call for back-up officers and run a check on the names provided, the driver ran off. Mr. Carver, still in the passenger seat, was then ordered out of the car, “secured” and searched (R 242-243). A digital camera was removed from his coat pocket during what the officer characterized as a pat- frisk for weapons (R 243-244, 254). Mr. Carver was then handcuffed (R 244). He was held for almost an hour before police received a report of a burglary. James Oleksyn woke up at his Street home at 5:30 a.m. that morning (approximately one hour after Mr. Carver had been arrested). Mr. 6 Oleksyn discovered that his home had been burglarized during the night and reported it t o police. Officer Nielson heard the dispatch report of the burglary while he was looking for the driver. He had left Mr. Carver in the custody of another officer (R 243, 303-304), who was completing a prisoner data form for Mr. Carver (R 380). After Mr. Oleksyn found his home had been burglarized, it was discovered that the home of his neighbor, who was not at home, had also been burglarized. Mr. Carver was charged with two counts of burglary, and counsel was assigned by the court (R 26). While pre-trial omnibus motions were filed by defense counsel, there was no request for either suppression of the evidence found on, or taken from, Mr. Carver or the car, or a hearing for the purpose of determining whether the evidence should be suppressed. The digital camera found in the pocket of Mr. Caver’s jacket became a pivotal piece of the prosecution’s case, as it had been identified as belonging to one of the homeowners whose house was burglarized that night (R 534), and implicated him as more than just an unwitting passenger – one who had not been involved with, or even aware of, the burglaries just committed by others in the car. And Mr. Carver’s DNA, collected from the butt of a cigarette he was given to smoke while he was held in custody (R 392-393), was also critical, as it essentially showed that Mr. Carver had worn the gloves found in the car. 7 During the People’s opening, the prosecutor promised DNA evidence would be presented. She told the jury the DNA work performed by the Monroe County Public Safety Laboratory would show that Mr. Carver could not be excluded as the person who wore the gloves, and that there was a one in 44,050 chance it was someone other than Mr. Carver who contributed to the DNA on the left glove, and one in 6,090 chance it was someone other than Mr. Carver who contributed to the DNA on the other glove. (R 192.) And indeed, the laboratory witnesses testified largely as the prosecutor promised (R 426). 1 Defense counsel, however, apparently did not understand the anticipated DNA evidence. He told the jury the following in his opening remarks. They think the DNA evidence in this case is the cat’s meow. They’re going to tell you, as the People just told you, that there’s a one in 66,000 chance that it might be my client’s DNA. Well, the Blue Cross arena holds approximately 12,000 people across the street, so it’s half of a Blue Cross arena could have had DNA in that glove. (R 195.) Defense counsel’s grasp of critical prosecution evidence was obviously significantly flawed. But counsel’s failings did not stop there. During the trial, counsel repeatedly failed to object when the prosecutor engaged in highly prejudicial and improper conduct. F or instance, no objection 1 While the prosecutor said the odds were one in 44,050 that the DNA on the left glove was contributed by someone other than Mr. Carver, the expert testified the odds were less than one in 4500 (R 426). The larger number mentioned in the opening statement may have been a mistake by the prosecutor, or a transcription error. 8 was made when the prosecutor, during her cross-examination of Mr. Carver, asked whether a critical prosecution witness had lied to police (R 484). No objection was made when the prosecutor asked Mr. Carver if he had given an explanation to police for why a screwdriver, wallet and leather gloves were found at his feet (R 495). No objection was made during the prosecutor’s summation, when she told jurors Mr. Carver’s story was a lie (R 529), and that Mr. Carver had previously been convicted of burglary in the second degree (R 532), when Mr. Carver had admitted to having been convicted of attempted burglary but there was no proof of a conviction for burglary in the second degree (R 491-494). No objection was made when the prosecutor told the jury that being deaf (Mr. Carver had suffered hearing loss while serving in the military) “is not a defense to being a burglar . . . and he’s been convicted of burglary before” (R 536). Mr. Carver was found guilty of two counts of burglary in the second degree. On April 22, 2010, Mr. Carver appeared for sentencing. The second violent felony offender information alleged that Mr. Carver had a prior conviction for burglary in the second degree (January 21, 2000), and when asked whether Mr. Carver had any “constitutional objections to that prior sentence,” defense counsel, demonstrating a fundamental misunderstanding of the law, said, “[h]e is a sking you is (sic) there any appeals pending on that old case?” Mr. Carver replied “[n]o, 9 sir.” Counsel then indicated that he had no objection to the court adjudicating Mr. Carver a second violent felony offender, and the court did so. (R 578.) The court noted that it had received a letter, the day before, from Mr. Carver (R 581). In that letter, Mr. Carver explained that he had been provided ineffective representation, and outlined many of counsel’s failings and errors (R 654-655). The court asked no questions about the letter or its contents. The Presentence Report that had been prepared by the Monroe County Probation Department showed that Mr. Carver, age 48, had a criminal record of just one felony conviction. H e also had been convicted of two violation level offenses. Mr. Carver was a veteran, having served in the National Guard, under active duty, and had been honorably discharged. He suffered significant hearing loss as a result of an accident while in service. Mr. Carver’s codefendant had been sentenced to one year in the Monroe County Jail. (Presentence Report, dated April 16, 2010, 1-5; hereinafter PSR [submitted under separate cover].) With Mr. Carver facing a determinate sentence of anywhere between seven and fifteen years on each count, counsel was asked if he wished to say anything on behalf of his client before sentence was imposed. C ounsel said “[n]o Judge.” Counsel added that the court had heard the facts of the case, understood what the defense position was throughout the case, and that he had nothing to add. (R 582.) 10 The prosecutor, after noting that the pretrial offer had been ten years, when it had actually been seven years (R 69), requested a twelve year term be imposed (R 70- 71). The court, exceeding the request of even the prosecutor, imposed a fifteen year term of incarceration (and five years of post-release supervision) as to each count, to be served concurrently. Four months after Mr. Carver was sentenced, defense counsel died. The Appellate Division Decision The Appellate Division, in a 3-2 vote, affirmed Mr. Carver’s conviction (People v Carver, 124 AD3d 1276 [4th Dept 2015]). The majority of the court, focusing primarily on Mr. Carver’s contention that he had been denied effective assistance of counsel by trial counsel’s failure to seek suppression of evidence, reasoned that Mr. Carver did not have a “colorable” claim for suppression of evidence. Employing a “likey-to-succeed” definition for that which constitutes a “colorable” claim, the majority found such lacking: “we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely to have been successful.” (Carver, 124 AD3d at 1279.) Summarily, the majority dismissed the other numerous failings of defense counsel, determining them to be not “individually or collectively so significant as to deprive defendant of is right to effective assistance of counsel.” (Id.) 11 The dissent, applying the New York standard, concluded that Mr. Carver had been denied effective assistance of counsel. Rejecting the majority’s threshold requirement – “that a showing of success is essential to succeed on a claim for ineffective assistance based on counsel’s failure to make a motion” – the dissent set the threshold showing necessary for a “colorable” claim as being whether the particular motion at issue had “more than little or no chance of success” (Id. at 1283). The dissent characterized the majority’s higher standard as incompatible with New York’s existing jurisprudence. (Id.) Given the trial testimony about the stop of the vehicle, the dissent found that a motion to suppress evidence seized as a result of that stop had “more than little or no chance of success.” The dissent also found no strategic reason for failing to make such a motion because the evidence seized as a result of the stop was dispositve of the entire proceeding. (Id.) 12 ARGUMENT Mr. Carver Was Denied Effective Assistance Of Counsel. A. Introduction With Mr. Carver facing determinate terms of imprisonment between seven and fifteen years on each of the two burglaries, and with the prosecutor asking for a twelve year sentence, when counsel was asked whether there was anything he wished to say (on behalf of his client), he responded “No Judge,” adding only that the court had heard the facts (at trial) and knew what the defense position had been (R 582). Counsel engaged in no advocacy on behalf of his client at this crucial moment of sentencing. But this was just the last in a series– in a case marked from beginning to end by defense counsel’s unreasonable failings, blunders and ignorance. The denial of effective representation began with counsel’s failure to make a motion to suppress critical prosecution evidence despite having a colorable claim for suppression and no conceivable strategic or legitimate reason for not doing so. It continued during opening statements where counsel demonstrated that he did not understand the prosecution’s DNA evidence, and promised that such evidence would show, in essence, that there was only a slim chance that Mr. Carver’s DNA was in the gloves, when the evidence showed the exact opposite. Counsel then 13 failed to object to t he prosecutor’s improper and prejudicial questioning of Mr. Carver, and her improper statements during summation. Counsel’s deficient representation finally ended at sentencing where he misadvised Mr. Carver regarding his right to challenge the constitutionality of the prior conviction during the predicate offender proceedings, and then made no case for a favorable sentence (or even one less than the maximum). Cumulatively, if not individually, the effect of these errors caused a break-down of the adversarial process so critical to a fair trial (United States v Cronic, 466 US 648 [1984]), resulting in a denial of the right to effective assistance of counsel and due process of law, as guaranteed under both the United States and New York constitutions (US Const Amend VI, XIV; NY Const art I, §6). This Court has said that “the right to effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial” (People v Claudio, 83 NY2d 76, 80 [1993], citing Cronic, 466 US at 658 [1984]). Under both the United States and New York Constitutions, defense counsel has a duty to advocate the cause of his client, and "to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process" (see Strickland v Washington, 466 US 668, 688 [1984]; People v Schulz, 4 NY3d 521 [2005]). “The benchmark for judging any claim of 14 ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland, 466 US at 686.) Under New York law, the question is not so much the reliability of the result, but rather the “fairness of the process as a whole,” and the “core of the inquiry is w hether defendant received meaningful representation" (People v Benevento, 91 NY2d 708, 712 -713 [1998]). “The safeguards provided under the Constitution must be applied in all cases to be effective and, for that reason, ‘our legal system is c oncerned as much with the integrity of the judicial process as with the issue of guilt or innocence’ (People v Donovan, 13 NY2d 148, 153-154[1963]).” (Benevento, 91 NY2d at 714.) The right to the effective assistance of counsel has been described by the United States Supreme Court as “the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing.” (Strickland, 466 US at 656-657.) “When a true adversarial criminal trial has been conducted – even if defense counsel may have made demonstrable errors – the kind of testing envisioned by the Sixth Amendment has occurred.” (Id.) But the right to effective assistance of counsel is violated where the performance of counsel is such that "the process loses its character as a confrontation between adversaries.” (Id.) And that is exactly what occurred in this case. 15 While counsel is presumed to have been competent (see In re Jeffery V., 82 NY2d 121, 126 [1993]), the nature and character of counsel’s failings in this case resulted in a lack of meaningful adversarial testing. The record in this case is replete with failings, blunders and errors, many of which reveal counsel’s unfamiliarity with fundamental law and critical facts, placing this case squarely in the category of those cases where the adversarial process ceased to function (see People v Oathout, 21 NY3d 127 [2013]). Counsel failed to provide effective representation, and as a result, Mr. Carver was denied a fair trial (see People v Aiken, 45 NY2d 394, 401 [1978]). B. Federal and New York Standards of Review The Sixth Amendment to the United States Constitution guarantees that a defendant shall “enjoy the right . . . to have the Assistance of Counsel for his defense.” Likewise, article I, § 6 of the New York Constitution guarantees that right. Effective assistance of counsel is an “essential” ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context” (Benevento, 91 NY2d at 711, citing People v Felder (47 NY2d 287, 295 [1979]). “It is well-established that these constitutional rights are violated if a defendant’s counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure.” (People v Turner, 5 NY3d 476, 479 16 [2005] [internal citations omitted].) While the defendant is guaranteed effective representation under both the Federal and New York State Constitutions, an ineffective assistance of counsel claim is evaluated differently under each. To prevail on a federal claim of ineffective assistance, the Strickland test is applied, under which a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant (Strickland, 466 US 668). A defendant satisfies the prejudice prong under Strickland by showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Williams v Taylor, 529 US 362, 390-391[2000], quoting Strickland, 466 US at 694.) Under the New York Constitution, the Baldi standard applies. To prevail on a state claim of ineffective assistance of counsel a defendant must show that the “evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney [failed to provide] meaningful representation” (People v Baldi, 54 NY2d 137, 147). It has traditionally been viewed that the Strickland and Baldi standard agree on the first (quality of representation) prong of the test, with the difference arising from the 17 second (prejudice) prong of the test. T his Court has “departed from the second (‘but for’) prong of Strickland, adopting a rule that is generally viewed as more favorable to defendants” (Turner, 5 NY3d at 480 [internal citations omitted]). As to the prejudice prong under Baldi, the question is whether the attorney’s acts, omissions and errors “prejudice[d] the defense or defendant’s right to a fair trial” (People v Hobot, 84 NY2d 1021 [1995]). Thus, the inquiry under Baldi focuses on the “the fairness of the process a whole” (Benevento, 91 NY2d at 714), and a defendant only needs to demonstrate that overall, he was deprived of a fair trial (People v Caban, 5 NY3d 143, 156 [2005]). While questions as to the compatibility of the New York test and federal test have arisen, the Second Circuit Court of Appeals continues to hold that the Baldi test satisfies the strictures of the Strickland test (see Rosario v Ercole (601 F3d 118 [2d Cir 2010] [New York standard for ineffective assistance of counsel, properly applied, is n ot contrary to Strickland]). Application of the Baldi test, however, sometimes does not (see e.g. Gersten v Senkowski, 426 F3d 588, 601 [2d Cir 2005]; Henry v Poole, 409 F3d 48 [2d Cir 2005]). Looking at counsel’s performance “as a whole” may fail to satisfy Strickland because each deficiency needs to be fully explored and its prejudicial impact specifically determined, even under circumstances where counsel did most things 18 right (see Gersten, 426 F3d at 601] [where state court failed to explore the prejudice relating to defense counsel’s failure to consult with or call an expert to rebut the People’s proof, and instead concluded the fairness of the proceeding had not been compromised given counsel’s vigorous cross-examination of the prosecution’s expert testimony, state court’s rejection of ineffective assistance claim was unreasonable application of Strickland]; Henry, 409 F3d 48 [where state court found the mistaken false alibi defense did not “seriously compromise” the defendant’s right to a fair trial given counsel’s competent rendering and arguing of a vigorous misidentification defense, rejection of ineffective assistance claim was unreasonable application of Strickland]). Thus, it has been held that “reliance on ‘counsel's competency in all other respects’ (People v Henry, 95 NY2d 563, 566 [2000]) failed to apply the Strickland standard at all. (Henry, 409 F3d at 72 [internal citation form modified]). Rather, it appears the Baldi standard satisfies the Strickland only when the likely effect of each error on the jury is considered and measured to determine whether the error(s) diminished the effectiveness of the defense. “It is axiomatic that, even if defense counsel ha[s] performed superbly throughout the bulk of the proceedings, [he] would still be found ineffective under the Sixth Amendment if deficient in a material way, albeit only for a moment and not deliberately, and that 19 deficiency prejudiced the defendant.” (Rosario, 601 F3d at 138 [Judge Straub concurring in part and dissenting in part, citing Henry, 409 F3d at 72]). In Rosario, the court (majority) addressed what could be seen as possible tension between the prejudice standards of Baldi and Strickland, wherein application of the Baldi standard could produce a result satisfying only the Strickland standard for ineffectiveness. “In defining prejudice to i nclude ‘the context of whether defendant received meaningful representation’, New York has to some degree combined the two prongs of Strickland. Prejudice to the defendant, meaning a reasonable possibility of a different outcome, is but one factor of determining if the defendant had meaningful representation. New York courts look at the effects of the attorney’s shortcomings as part of the equation in deciding if the defendant received the benefit of competent counsel. This approach, and the language of Benevento, creates the danger that some courts might misunderstand the New York standard and look past a prejudicial error so long as counsel conducted himself in a way that bespoke of general competency throughout the trial. (Rosario, 601 F3d at 125-126 [internal citations omitted]). Nothwithstanding the fact that here, counsel did some things right, Mr. Carver has been denied of effective assistance of counsel under both the Baldi and Strickland tests. That is because the effect of counsel’s performance was a break- down of the adversarial process, which deprived Mr. Carver of a fair trial. 20 C. Counsel’s Representation Fell Below An Objective Standard Of Reasonableness (Strickland) And Short Of Meaningfulness (Baldi). "[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him upon a trial and ask questions" (Bennett, 29 NY2d at 466; see Powell v Alabama, 287 US 45, 58 [1932]). "[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense . . . and who is familiar with, and able to employ . . . basic principles of criminal law and procedure" (Droz, 39 NY2d at 462). Whether counsel exhibited “reasonable competence” is essentially the threshold question under both the state and federal standard. Strickland frames its “quality-of–representation” prong as an inquiry into whether “counsel’s performance fell below an objective standard of reasonableness . . . under prevailing professional norms” (Strickland, 466 US at 688), noting that counsel “has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process” (id.). A ctions or omissions of counsel that “might be considered sound trial strategy” do not constitute ineffective assistance and a presumption that counsel’s conduct may be the product of “sound trial strategy” applies (id. at 689; Michel v Louisiana, 350 US 91, 101 [1955]). A strategic decision, however, is a “conscious, reasonably informed decision made by 21 an attorney with an eye to benefitting his client” (Pavel v Hollins, 261 F3d 210, 218 [2d Cir 2001]). Under Baldi’s “quality-of–representation” prong, the question is framed somewhat differently – whether representation was “meaningful.” In making that assessment, “[c]ounsel’s performance should be objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney.” (Benevento, 91 NY2d at 712 [internal citations omitted].) In announcing the Baldi standard for review of ineffective assistance claims, the Court of Appeals said that its most critical concern in such review was to “avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (Baldi, 54 NY2d at 146). A s demonstrated below, this is not a case where the challenge to counsel’s performance is a matter of second guessing with the clarity of hindsight, or a response to counsel’s pursuit of an unsuccessful strategy (see Benevento, 91 NY2d at 712). Rather, this ineffective claim is based on: the failure of trial counsel to move to suppress critical prosecution evidence; counsel’s demonstrated lack of understanding of critical scientific prosecution evidence; counsel’s repeated failure to object during trial and summation; counsel’s demonstrated lack of understanding regarding a challenge to the use of a prior conviction on the ground 22 it was unconstitutionally obtained; and counsel’s failure to advocate for his client at sentencing. As demonstrated below, counsel’s performance fell far short of that of a reasonably competent attorney. He did not bring forth the skill and knowledge necessary to a reliable adversarial testing process. 1. Counsel’s failure to raise a colorable suppression issue Both the United States Constitution (Fourth Amendment) and the New York Constitution (Article I, Section 12) guarantee the right to be protected against unreasonable searches and seizures. Evidence obtained in violation of this right may not be admitted into evidence against him (Mapp v Ohio, 367 US 643 [1961]). The exclusive method by which a defendant can challenge the admissibility of evidence he contends was obtained as a result of an unlawful search and seizure is a motion to suppress. And under CPL 710.20, any person aggrieved by an illegal search and seizure is authorized to move to s uppress any evidence seized as a result of the unlawful search and seizure. A motion to suppress evidence has been recognized as “‘a crucial step in a criminal prosecution; it may often spell the difference between conviction or acquittal (People v Lombardi, 18 AD2d 177, 180 [2d Dept 1963], affd 13 N Y 2 d 1014)’ (People v Anderson, 16 NY2d 282, 287 [1965]).” (People v Jones, 145 AD2d 648, 650-651 [2d Dept 1988], Lawrence J. dissenting [internal quotation 23 marks and citation form modified].) T hat is because the evidence seized “may constitute the principal, if not the only, means of establishing the defendant's guilt" (Lombardi, 18 AD2d at 180). The single link between Mr. Carver and the burglaries was his possession of, or proximity to, the property stolen from the two houses. There were no eyewitnesses who observed Mr. Carver inside or near either of the two burglarized residences. There was no surveillance video showing the culprits. There was no evidence of an admission by Mr. Carver, or anyone else. There was no fingerprint or DNA e vidence found either inside or outside the homes that implicated Mr. Carver. Thus, a suppression motion resulting in exclusion of all the physical evidence (that found in the car and on Mr. Carver) would likely have been dispositive of the entire case. A nd a suppression motion resulting in only the exclusion of evidence taken from Mr. Carver, would have significantly weakened the prosecution’s case (see People v Clermont, 22 NY3d 931, 934 [2014]). Where a claim of ineffective assistance of counsel is made on the basis of defense counsel’s failure to move to suppress evidence, it is rare, but in some cases possible, that the trial record can demonstrate (1) a colorable basis upon which suppression could have been sought, and (2) an absence of a legitimate or strategic reason for not bringing the motion (see People v Rivera, 71 NY2d 705, 709 [1988]; 24 People v Carnevale, 101 AD3d 1375, 1378-1379 [3d Dept 2012]). This is such a case. The trial record demonstrates a “colorable basis” for suppression (see e.g. Carnevale, 101 AD3d 1375 [untested trial record reflects a colorable basis upon which to bring a pretrial Huntley motion, and counsel’s failure to bring such a motion, with other deficiencies, deprived defendant of meaningful representation]). Officer Nielson stopped the red Pontiac in which Mr. Carver was riding as a passenger at 4:30 a.m., purportedly because items hanging from the rear-view mirror, and a sticker on the windshield, obstructed the view (R 232). After the driver fled, Officer Nielson ordered Mr. Carver out of the car and “secured him” (R 242). The officer then had Mr. Carver “assume a position with his hands behind his back.” (R 243). T he officer then searched Mr. Carver, in what he described as a “patfrisk, and removed digital camera from his pocket (R 242-245, 254-255). Mr. Carver was then placed in the backseat of a police car. Mr. Carver was detained for almost an hour while the police looked for a crime. Mr. Carver was clearly under arrest – he was handcuffed, searched, and a prisoner data report was filled out while Mr. Carver was in the police car (R 380), but the police had no report of a crime, and his arrest was unlawful (see People v Williams, 17 NY3d 834 [2011], affg 79 AD3d 1648 [4th Dept 2010]; People v 25 Ryan, 12 NY3d 28 [ 2009]). James Oleksyn, the resident at Street, woke up at 5:30 a.m., to discover his home had been burglarized during the night (R 204). He then called 911 (R 205), which would have been an hour after the red Pontiac was stopped and almost an hour after Mr. Carver was “secured” and detained. And the resident of the home at Street was out of town when the burglary happened and she was unaware of it until she got a call from her neighbor, Jim (R 439). While the police may have had a hunch that the items in the car were stolen, or that the two men were up to no good, such a hunch is an insufficient basis for an arrest as probable cause was required (see People v Sobotker, 43 NY2d 559, 564 [1978]; People v De Bour, 40 NY2d 210 [1976]). There is no doubt this was a full-blown arrest from the moment Mr. Carver was ordered out of the car. The officer immediately “secured” Mr. Carver and had him “assume a position with his hands behind his back” (R 242-243), clearly indicating he was handcuffed at that point. The search, which included reaching into Mr. Carver’s jacket pocket to get a camera, followed (R 242-245). The police filled out a prisoner data form while Mr. Carver was placed in a police car (R 380). This was no temporary investigatory detention while police engaged in action to confirm or dispel suspicion immediately, permissible upon less than probable cause (see People v 26 Hicks, 68 NY2d 234 [1986]). Th is was an arrest requiring probable cause (see Williams, 17 NY3d 834; De Bour, 40 NY2d at 210; see also Dunaway v New York, 442 US 200 [1979]) and it was lacking as police knew of no crime Mr. Carver had committed. And the driver’s flight does not elevate the level of suspicion to the probable cause necessary to arrest a non-fleeing passenger. The driver may have fled for reasons that have nothing to do with the passenger – such as an outstanding warrant, a suspended driver’s license, or intoxicated driving. Indeed, even if the officer believed Mr. Carver was about to flee, flight carries no indicia of criminality (see People v Robbins, 83 NY2d 928 [1994]; People v Holmes, 81 NY2d 1056, 1058 [1993]). Forcibly detaining the passenger without any suspicion of wrongdoing is unconstitutional (see People v Campbell, 245 AD2d 191 (1st Dept 1997]). Notwithstanding what appears to have been an unlawful de facto arrest (see Williams, 17 NY3d 834; Ryan, 12 NY3d 2 8; People v Battaglia, 82 AD2d 389, revd on dissent of Hancock, J., 56 NY2d 558), defense counsel did not challenge the seizure, search and detention of Mr. Carver, during which the digital camera was taken from his pocket, and after which the Avon Chapstick was removed from 27 his pocket (R 254, 262), and his DNA t aken from a cigarette he was given by police to smoke (R 282). Nor did counsel challenge the stop of the vehicle. A passenger has standing to challenge the admissibility of evidence seized as a result of an unlawful stop (see Brendlin v California, 551 US 249 [2007]). And the fact that a passenger may lack standing to challenge the search of the vehicle “has no bearing on defendant’s right to contest the legality of the stop.” (People v Millan, 69 NY2d 514 n 6 [1987]). Because suppression of the evidence seized as a result of the stop of the car would have most likely resulted in dismissal of the charges, it was critical to challenge the stop. Officer Nielson’s subjective claim that he stopped the red Pontiac at 4:30 a.m. because the “windshield was obstructed by items hanging from the rear-view mirror” and had a sticker (R 232), would create factual and legal issues concerning the lawfulness of the stop. For instance, New York Vehicle and Traffic Law § 375(12-a) (b) (1), by its clear terms, permits “materials” to be affixed to a windshield provided they are limited to the uppermost six inches of the windshield. And, Vehicle and Traffic Law § 375 (30), which prohibits a person from operating a motor vehicle “with any object placed or hung in or upon the vehicle, except required or permitted equipment of the vehicle, in such a manner as to obstruct or interfere with the view 28 of the operator through the windshield, or to prevent him from having a clear and full view of the road and condition of traffic behind such vehicle,” creates factual questions about what the officer saw, what the item was and whether it actually obstructed the driver’s view. T he officer’s subjective claim is clearly open to question, exploration and challenge. The stop of the car was based upon the officer’s subjective claims about items that may or may not, depending on what they were and where they were placed, have obstructed the driver’s view in violation of the Vehicle and Traffic Law. Substantial questions about the legality of the stop were clearly present. The subsequent arrest, search and detention of Mr. Carver for almost an hour, while the police investigate whether a crime has occurred also raises substantial questions about the legality of police conduct. Principles of adversarial testing and fundamental fairness require that the People be put to their proof on those basic issues concerning the legality of the stop, the arrest and warrantless search of Mr. Carver, especially in th is case, where, without the fruits of the illegality, the charges would likely be dismissed (see Clermont, 22 NY3d at 934). Meaningful representation required Mr. Carver’s attorney to challenge the legality of the police conduct that produced the only evidence against him (see e.g. People v Vauss, 149 AD2d 924 [4th Dept 1989][“Although we need not pass on 29 the question of whether a Payton violation occurred under such circumstances, the manner of the arrest and the critical nature of the evidence which flowed from it clearly required that the statement be challenged on this ground”; counsel was determined to be ineffective for failing to challenge the warrantless arrest of defendant on the basis of a possible Payton violation]; People v Sanin, 84 AD2d 681[4th Dept 1981] [“Although we do not pass on the question of whether such motion would have been successful, the critical nature of that seizure and the evidence which flowed therefrom clearly required that it be challenged”; counsel was ineffective for not doing so]; People v Layou, 114 AD3d 1195 [4th Dept 2014] [counsel ineffective where he did not move for suppression of physical evidence and defendant’s statement]; compare People v Bedell, 114 AD3d 1153 [4th Dept 2014] [counsel not ineffective for failing to make motion to suppress physical evidence found during search incident to arrest because defendant failed to demonstrate the motion, if made, would have been successful]). Ineffectiveness on the basis of counsel’s failure to make a motion to suppress evidence does not require a showing of success on the motion. As the Fourth Department has said, “[w]hile we cannot make findings of fact or predict on this record whether the defense would have succeeded in moving to suppress either or both of her statements had a full record been made . . . . we find that there were 30 solid, colorable arguments to be made on such a motion that we do not find would likely have been futile (see People v Jackson, 48 AD3d 891, 893 [3d Dept], lv denied 10 NY3d 841 [2008]) or would have had ‘little or no chance of success’ (People v Stultz, 2 NY3d 277, 287 [2004]).” (Carnevale, 101 AD3d at 1380-81.) And even if a reasonably competent attorney doubted the success of the motion, no reasonable defense lawyer would have found it so “weak as to be not worth raising” (see Turner, 5 NY3d at 483.) Under New York law, the success of a motion or argument has never been required for a finding of ineffective representation. Instead, this Court has often said that “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’” (Caban, 5 NY3d at 152, quoting Stultz, 2 NY3d at 287). Here, as demonstrated above, there are substantial arguments to be made for suppression. And that showing is all that is needed. Recently, in People v Clermont (22 NY3d 931), where counsel’s performance was found deficient, this Court recognized “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.” (Clermont, 22 NY3d at 934.) And 31 indeed, where counsel has failed to make the argument or motion, it will be impossible to establish with certainty, that he would be successful. Therefore, this Court remitted the case for further proceedings on the suppression motion (id.). While showing that the motion would result in suppression is a rguably required under the Strickland test (Kimmelman v Morrison, 477 US 365 [1986]), that has never been the case under New York jurisprudence. That a defendant making a federal claim would need to prove he would have been successful on the unmade motion or argument, while a defendant making a state claim would not, is reflective of, and consistent with, the dichotomy in the prejudice standards. The prejudice inquiry under Strickland is a reasonable probability of a different outcome (Williams v Taylor, 529 US 362, 390-391[2000]). T hus, to satisfy the Strickland prejudice test, a defendant raising an ineffective assistance claim based upon counsel’s failure to move for suppression, would need to demonstrate a probable different outcome; in o ther words, a showing that the suppression motion would have succeeded (see Kimmelman,, 477 US 365). The inquiry under Baldi focuses on the “the fairness of the process a whole,” which may include, but does not require, considering the likelihood of a different outcome ( Benevento, 91 NY2d at 714). Thus, under New York law, a defendant need only show that overall, he was deprived of a fair trial (Caban, 5 NY3d at 32 156), which does not require a showing that, if made, the motion or argument would have been successful. New Jersey adheres to the Strickland standard as a matter of state law but only requires appellants to show the existence of a meritorious Fourth Amendment claim (without addressing whether a suppression motion, if properly made, would have ultimately been successful). When the appellant makes this showing, the appellate court remands the matter to the trial court for a suppression hearing and determination. Only if the trial court actually suppresses evidence will the conviction be reversed on ineffective assistance of counsel grounds. (See State v Johnson, 365 NJ Super 27 [Super Ct 2003].) This Court has employed a similar remittal procedure in cases where a defendant’s challenge to a search has been improperly denied and the record is insufficient to determine the legality of the search or seizure (see e.g Millan, 69 NY2d at 518). H ere, the existence of a cognizable suppression issues is apparent on the face of the trial record. In People v Vasquez (20 NY3d 461 [2013]), the defendant claimed he was denied effective assistance of counsel based on his attorney’s failure to seek preclusion of an unnoticed (CPL 710.30) showup identification, which immediately followed a noticed “pointout” of the defendant by the victim. Following a Wade hearing, defendant’s request for suppression of the initial, 33 noticed “pointout” identification was denied. The victim and police later gave trial testimony about the unnoticed post-arrest identification. Defense counsel did not object to that second identification testimony on the ground that it was not included in the CPL 710.30 notice. Recognizing that an argument for preclusion could have been made, and that there was a counter argument, this Court found it “not obvious that defendant’s counsel could have successfully sought preclusion of the evidence” and noted that the argument for preclusion was “not so compelling that a failure to make it amounted to ineffective assistance.” (Vasquez, 20 NY3d at 467.) Implicitly, a compelling argument, not necessarily a winning one, would have satisfied the deficiency prong. This Court could have, but did not, reject the ineffective claim on basis of defendant’s failure to make a dispositive showing that if made, the motion would have succeeded. I nstead, the language used by the Court shows that a substantial or compelling argument for suppression need be made – not a dispositive one (id.). Here, a substantial argument for suppression exists on this trial record which shows unlawful arrest. This issue is one which needed to be raised and the facts established in order to resolve it under De Bour jurisprudence. And the lawfulness of the stop of the vehicle similarly needed to be challenged, given the fruits of that stop, and the police claim that the stop was based upon an item hanging from the rear-view mirror, and a sticker on the 34 windshield. No reasonably competent attorney would determine these arguments were not worth making (Turner, 5 NY3d at 483). Moreover, on this record, there is no possible strategic or other legitimate explanation for not making the motion. “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to request a particular hearing.” (Rivera, 71 NY2d at 709.) First, on this record, there can be no strategic explanation for counsel’s failure to raise a colorable suppression issue. Without the items found in the backseat of the car following the police stop of the vehicle, it is difficult to see any basis upon which the prosecution could have gone forward. And the digital camera and Avon chapstick found in the pocket of the jacket Mr. Carver was wearing was especially critical to this prosecution. Those items placed him personally in recent and exclusive possession of stolen property, and, indeed, the jury was instructed that it could infer guilty possession based upon a finding of recent and exclusive possession of stolen property (R 554). The defense did not utilize the seized evidence to advance the defense in any way. Rather, the defense tried to distance itself from the evidence and explain it away. And counsel’s objection, when the prosecution offered the digital camera into evidence at the trial (R 256) (albeit on chain of custody grounds), shows that counsel wanted that 35 evidence excluded (see Turner, 5 NY3d a t 484). Thus, the failure cannot be ascribed to a sound strategic choice (see People v Fisher, 18 NY3d 964 [2012]). The record in this case is unlike the record in People v Rivera (71 NY2d 705), where the defendant challenged his counsel’s representation, based on the failure to move for suppression of defendant’s statement to police. In Rivera’s companion case, People v Montana (71 NY2d 705), the defendant’s challenge was based primarily on counsel’s failure to move to suppress physical evidence and a statement taken following a purported illegal stop. Both claims were rejected as the defendants failed to demonstrate the absence of strategic or other legitimate explanation for the failure to request a suppression hearing. Given the record in each case, it appeared there may have been a strategic reason, or a legitimate explanation, for not bringing the motion. In Rivera, the defendant gave a written and videotaped statement to police, admitting that he acted as lookout while his friend robbed and killed the victim. The statement was admitted at trial. The defendant testified at trial, and said he had confessed only after invoking his right to counsel. He claimed the police had told him it w ould take too long to get an attorney, and it would make matters worse, so he went ahead and gave a statement without counsel, and gave the police a somewhat mitigating statement – that he was just acting as a lookout. 36 Pointing out that there may be many reasons for an attorney’s failure to make a suppression motion, such as strategy or a “reasonable conclusion, based on the facts known at that time, that there is no colorable basis for a hearing,” this Court also pointed out that an attorney may “fail to make a proper inquiry of the factual basis for a hearing or may make erroneous legal judgment about the viability of a request for a hearing.” (Rivera, 71 NY2d at 709.) And on the record in Rivera, there was no way to tell which. Counsel would have been ineffective if he had failed to make proper inquiry about the relevant facts of the case, but not ineffective if the defendant simply failed to inform counsel about the relevant facts. So the presumption of effective assistance prevailed. As to the ineffective representation claim in Montana, this Court found the defendant failed to demonstrate that counsel’s failure to move to suppress was not a strategic choice. On the record in this case, however, it is possible to reject all legitimate explanations for counsel’s failure to pursue a colorable suppression issue. The evidence was not used to advance the defense. Rather the defense tried to distance the defendant from it, exclude it (R 256) and explain it away. Nor did the defense have anything to lose by bringing the suppression motion. That was not the case in People v Strempack (71 NY2d 1015 [1988]), where counsel was found not ineffective for failing to bring a suppression motion 37 prior to the entry of a guilty plea. While he might have prevailed on the motion, success was not certain. And had the motion been denied, it was doubtful that the favorable plea bargain would have still been available. This Court’s decision in People v Oliveras (21 NY3d 339 [2013]), while not dealing with an ineffective assistance claim based on the failure to move to suppress evidence, speaks to counsel’s affirmative obligation to investigate the facts and law. T here, counsel had failed to obtain and review his client’s psychiatric records, and he developed the challenge to th e voluntariness of the statement without the benefit of the records, instead relying on the lay witness testimony of defendant’s mother. This Court held that counsel’s failure to conduct an appropriate investigation of records critical to the defense deprived him of effective representation. “Essential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client, is the attorney’s investigation of the law, the facts, and the issues that are relevant to the case.” (id. at 346) This Court has repeatedly made clear, that “‘[a] defendant’s right to representation does entitle him to have counsel conduct appropriate investigations, both factual and legal, to determine if matter of defense can be developed . . . ’ Bennett, 29 NY2d at 466; see Droz, 39 NY2d at 462 [‘it is elementary that the right to effective representation 38 includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense’]).” (Oliveras, 21 NY3d at 346-347 [internal citation form modified]). And the American Bar Association Standards governing defense counsel makes the duty to investigate clear. Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. (1 ABA Standards for Criminal Justice 4-4.1 [3d ed. 1993]). So, if counsel in Mr. Carver’s case did not know the circumstances of the stop, search and detention, he should have found out. And if he knew, he should have moved to suppress. In Rivera (71 NY2d 705), one of the key unresolved questions was whether the defendant had informed his attorney, prior to trial, of what he claimed at trial had occurred during the interrogation. For if he did not, and counsel was therefore in the dark through no fault of his own, counsel would have been excusably unaware of a colorable basis for suppression. But in the present case, the officer’s own version of what he did, when he did it, what he knew, and when he knew it, standing alone, provides a colorable basis for suppression. This version was available to defense counsel through investigation. This is unlike Rivera, where the defendant’s own version of events 39 was necessary to supply the colorable basis for suppression, and there was no indication that counsel was aware of his client’s claims about requesting an attorney. Here, what Mr. Carver told his attorney does not matter, because the trial record in this case clearly demonstrates, at minimum, an unlawful arrest of Mr. Carver based solely on the prosecution’s proof. A reasonably competent attorney would have investigated the facts underlying the stop and arrest in this case, and if he had, it is r easonable to conclude that that investigation would have produced information consistent with the officer’s trial testimony. Had Mr. Carver made a motion for suppression under CPL 710.60, relying on the testimony of Officer Nielson to support his request for suppression on the basis of a unlawful seizure and search, those factual allegations would appear to sufficiently support the motion under CPL 710.60 (3) and People v Mendoza (82 NY2d 415 [1993]) to put into question the lawfulness of the police conduct (see People v Moore, 186 AD2d 591 [2d Dept 1992]). Here, counsel’s failure to make the suppression motion is just one of many errors, and not the sole basis for Mr. Carver’s ineffective assistance claim. It is also the cumulative effect of these errors that underlies his claim. Like in Clermont (22 NY3d 931) there was a litany of errors, substantially undermining confidence in the fairness of the proceedings. 40 2. Counsel’s failure to review, understand or counter the prosecution’s DNA evidence Counsel started the trial without an accurate understanding of the DNA evidence. This was exposed in his opening statement, where counsel essentially told the jury that the DNA evidence would show a slim chance that it was Mr. Carver’s DNA in th e gloves, when the expert’s testimony was essentially the opposite – that there was a slim chance the DNA found in the gloves belonged to someone else. During her opening statement, the prosecutor told jurors that she would present DNA evidence that would show Mr. Carver could not be excluded as the person who wore the gloves, and that there was a one in 44,050 chance it was someone other than Mr. Carver who contributed to the DNA on the left glove, and one in 6090 chance it was someone other than Mr. Carver who contributed to the DNA on the other glove (R 192). The expert testified that the probability of randomly selecting an unrelated individual who could be a contributor to the sample taken from the left leather glove was less than one in 4500 and less than one in 6090 for the right leather glove (R 426). In his opening statement, defense counsel inverted that conclusion, and told jurors, after mocking the scientific evidence which he claimed the People thought was the “cat’s meow, that the prosecution’s DNA proof would show that “there’s a one in 66,000 chance that it 41 might be my client’s DNA.” (R 195.) He continued, saying “the Blue Cross arena holds approximately 12,000 people across the street, so it’s half of a Blue Cross arena could have had DNA in that glove. Doesn’t have to be Mr. Carver’s. It says he can’t be excluded, but it does not include him either . . .” (R 193-194). Counsel banked on an interpretation of the DNA evidence that was contrary to that of the prosecution’s expert, but did not call his own expert to back up his bold statements about what he claimed the DNA evidence would show. Nor did cross-examination of the expert support his contentions. Thus, his sardonic and inaccurate claims about the DNA evidence would show were never supported. The record here demonstrates that counsel had a profound misunderstanding of critical prosecution evidence. He told the jury that there was a one in 66,000 chance that the DNA found inside one of the gloves was that of Mr. Carver, when the evidence showed that there was a less than one in 6090 chance that someone other than Mr. Carver contributed to the DNA i n that glove (R 426). C ounsel misunderstood the DNA evidence to be strongly in his client’s favor, when in fact, it was very prejudicial. A defendant's right to representation entitles him to have counsel "conduct appropriate investigations, both factual and legal, to de termine if matters of defense can be developed, and to allow himself time for reflection and preparation 42 for trial." (People v Bennett, 29 NY2d 462 [1972] quoting Coles v Peyton, 389 F 2d 224, 226 [4th Cir 1968].) Clearly, the DNA r eport of the expert was discoverable (CPL 240.20 [c]), and counsel’s statement about the DNA in h is opening statement reveals that either he did not read it, or did not understand it. Mr. Carver was entitled to have him do both. In People v Bennett (29 NY2d 462 [1972]), this Court found counsel ineffective where the defense was insanity, and counsel had not read his client’s hospital records, and had not spoken with any of the doctors at the hospital where his client had been treated. Noting that the right to counsel included the right to have counsel “conduct appropriate investigations, both factual and legal,” the lack of preparation and investigation was found to fall far below the representation the Constitution guarantees to such a degree, that the trial was rendered a “farce and a mockery of justice.” (People v Bennett, 29 NY2d at 466.) Recognizing that even if the attorney had been prepared, the defendant may still have been found sane and guilty, this Court found the fact that the outcome may not have been different, was beside the point. “ What is crucial and operative is the unassailable fact that counsel’s failure to prepare the defense was so egregious as to render a verdict of guilty inevitable and thereby deny appellant a fair trial.” (Id. at 467.) This sentiment was repeated recently in People v Oliveras (21 NY3d 339). 43 “The People's argument that the contested records would not have helped the defense, regardless of trial counsel's choices, misconstrues the central issue in this case. The issue is not whether trial counsel's choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law. The utter failure to obtain these documents constituted denial of effective assistance. “ (Id. at 338.) Here, even if the jury’s conclusions about the DNA would not be likely to change, that is not the point. Counsel’s failure to understand the DNA evidence deprived Mr. Carver of meaningful review and adversarial testing of the prosecution’s scientific proof – proof from which the jury could conclude there was a high probability that Mr. Carver’s DNA was in t hose gloves and he had worn them during the burglary (no fingerprints had been found). Counsel had an obligation to garner the expertise needed to understand the evidence that was used to convict his client, and to be sufficiently informed to c ross-examine the prosecution’s expert (Knott v Mabry, 671 F2d 1208, 1213 [8th Cir 1982]). And while counsel did tell the court that he had engaged the services of “DNA expert/consultant” (R 73), counsel clearly did not have an accurate understanding of the prosecution’s DNA proof. Or, if he did, and the expert’s conclusion was 44 consistent with what counsel said in hi s opening statement, counsel inexcusably failed to call the expert to testify. In any event, counsel’s particular theory of the DNA evidence was not only unsupported by any trial evidence, but was contrary to the conclusions testified to by the prosecution DNA expert. Counsel’s credibility, and the credibility of the defense on whole, could only have been undermined by telling the jury something that turned out to be so patently untrue. The jury could only have been left wondering whether counsel was trying to pull a fast one on them, or just had no idea what he was talking about. Moreover, counsel’s ignorance regarding the DNA evidence made him incapable of rendering informed plea advice (see People v Logan, 263 AD2d 397 [1st Dept 1999]). Mr. Carver had rejected a plea offer with a promised sentence of seven years (R 69) – less than half the sentence ultimately imposed. Although counsel said Mr. Carver flatly rejected the plea offer and wanted his day in court, counsel’s erroneous belief that the DNA e vidence would show a one in 66,000 chance that Mr. Carver could be a contributor, when the evidence actually showed a one in 6,090 chance that someone other than Mr. Carver could be a contributor, was a fundamental and staggering mistake which would necessarily impact any recommendation counsel might make regarding the plea offer, Mr. Carver’s 45 assessment of the strength of the prosecution’s case, and his ultimate decision to reject the People’s offer. It is beyond dispute that defense counsel have a “constitutional duty” to convey any plea offers from the prosecution and to advise clients on the “crucial decision” of whether to accept a plea offer (Cardoza v Rock, 731 F3d 169, 178 [2d Cir 2013]). That duty requires counsel “to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” (Von Moltke v Gillies, 332 US 708, 721 [1948].) H ere, the record demonstrates counsel’s flawed understanding of the DNA evidence facing his client, and his flawed assessment was that the DNA evidence would be favorable – with only a one in 66,000 chance that Mr. Carver could be a contributor to the DNA found in the glove. As such, counsel could not have provided Mr. Carver with an informed recommendation regarding the plea. To the contrary, counsel could only have provided a devastatingly misinformed recommendation. Accurate assessment of DNA evidence was critical to determine the best course of action for Mr. Carver (see People v Gordian, 99 AD3d 538, 539 [1st Dept 2012], lv to appeal denied 20 NY3d 1061 [2013] [counsel was found ineffective on di rect appeal where she pursued a line of defense at trial which exposed her flawed understanding of the 46 law, and therefore, “[u]nder the circumstances, trial counsel could not have been able to advise defendant properly as to whether it was in her best interest to accept the plea offer that had been available”]). Here, counsel either (1) did not fully read, review, or investigate the prosecution’s DNA evidence, or educate himself regarding it, (2) did not bother to call an expert witness to support his contrary and favorable claims about what the DNA evidence would show, or (3) was trying to pull a fast one on the jury. And if the strategy was to lie about what the prosecution proof was, and pretend it would be favorable to the defendant, when review of that evidence would show that it was not, such a strategy is patently unreasonable. Such a tactic, if it was one, could only serve, ultimately, to undermine the credibility of the defense. And it would violate the American Bar Association Standards for defense counsel which state: “[d]efense counsel should not intentionally misrepresent matters of fact or law to the court.” (ABA Standards for Criminal Justice, 4-1.2 [f] [3d ed 1993].) It simply cannot be said that this was reasonable trial strategy (see People v Oliveras, 21 NY2d at 348). 47 3. Counsel’s failure to object to prosecutorial misconduct aimed at undercutting Mr. Carver’s testimony The prosecutor engaged in highly prejudicial misconduct during both cross- examination of Mr. Carver and summation. Inexplicably, counsel failed to object to those instances of misconduct (see Fisher, 18 NY3d 964). It should be beyond dispute that asking a defendant whether prosecution witnesses have lied is “a tactic which has been uniformly condemned as improper and inflammatory” (People v Grice, 100 AD2d 419 [4th Dept 1984], citing People v Bailey, 58 NY2d 272 [1983]). A nd, of course, whether a defendant believes witnesses have lied is irrelevant (see People v Berrios, 298 AD2d 597 [2d Dept 2002]). Yet here, during cross-examination of Mr. Carver, the prosecutor asked him whether a critical prosecution witness had lied to police (R 484), and then asked if the police had lied in their testimony (R 485). Also beyond dispute is that asking a defendant whether he provided police with the innocent explanation he now offers at trial, when he had no substantive conversation with police, is improper. The use of post-arrest silence against a defendant even for impeachment purposes violates the privilege against self- incrimination when the defendant has chosen not to speak with police about the crime (People v Savage, 50 NY2d 673, 677 [1980]). “Having been told he need not speak about the facts of the case at that time, the State cannot renege on its promise 48 and use the silence to impeach him when he subsequently testifies at trial.” (Id. at 677-678.) Yet here, where Mr. Carver did not speak with police about the crime, defense counsel made no objection when the prosecutor asked Mr. Carver if he had given an explanation to p olice for why a screwdriver, wallet and leather gloves were found at his feet (R 495). Nor may a prosecutor venture outside the four corners of the evidence, and tell the jury “facts” in summation, that have not been established during trial. During cross-examination, the prosecutor tried to get Mr. Carver to admit he had been convicted of burglary in the second degree (R 489-494), but did not succeed. She asked Mr. Carver if he had been convicted of a felony, and Mr. Carver answered in the affirmative. The prosecutor then asked if that felony conviction satisfied another felony, and Mr. Carver responded that he did not understand the question. Counsel then asked the following. Q. When you were convicted of the one felony, it was burglary, correct? A. No, ma’am. It was attempted burglary. Q. It was attempted burglary? A. Yes, ma’am. (R 490). After some confused questioning about whether the guilty plea entered satisfied some other felony, which left the issue unresolved (R 490), counsel asked 49 Mr. Carver if he had pled guilty, and he agreed he had, but maintained it was to attempted burglary, not burglary in the second degree (R 491). T he prosecutor then asked, improperly and with no objection lodged by defense counsel: Q. If I told you burglary in the second degree, would you agree with me? A. Ma’am, I guess I would. I don’t know what the law is. I don’t know. (R 491-492.) T he prosecutor then showed Mr. Carver some documentation and asked if that refreshed his recollection. Mr. Carver agreed that someone was charged in relation to that address, and that it was him, and the charge was attempted burglary. Q. I’m going to have you look at this paperwork to see if that refreshes you recollection as to it not being attempted burglary but burglary. A. I don’t recall seeing this, ma’am. Q. But it does say burglary on the top, correct? THE COURT (to defendant): D oes it refresh your recollection? You’ve never seen this before? A. No. The court then said that was “the end of it.” (R 494.) Clearly, the prosecutor tried, but failed, to e stablish that Mr. Carver had previously been convicted of burglary in the second degree, as opposed to attempted burglary. But that did not stop the prosecutor, in summation, from 50 telling the jury that Mr. Carver did in fact have a conviction for burglary in the second degree, for from making a propensity argument. In the middle of her summation, the prosecutor told the jury, without qualification, that “Mr. Carver has been convicted of burglary in the second degree before.” (R 532.) She later told the jury that “being hard of hearing is not a defense to being a burglar. A s we heard, he’s been convicted of burglary before.” (R 536.) Clearly, in that context, the prosecutor was using the second degree burglary conviction, of which there was no proof, to argue a strong propensity to commit burglary. Characterizing Mr. Carver as a burglar was exceedingly prejudicial. Nor did defense counsel object when the prosecutor “submitted” to the jury that Mr. Carver’s testimony “was a lie.” (R 529.) It has repeatedly been held that it is improper for a prosecutor to put before a jury his personal belief that the defendant is a liar (People v Shanis, 36 NY2d 697, 699 [1975]; Grice, 100 AD2d at 421). Defense counsel’s failure to object cannot be deemed a reasonable strategy. The defense had nothing to lose, and everything to gain, by making the objections. (See Fisher, 18 NY3d 964.) As to the prosecutor’s statement that Mr. Carver had been convicted of burglary in t he second degree, it would be unreasonable to believe that counsel, who had opposed the People’s application to cross examine 51 Mr. Carver about a conviction for burglary in the second degree during the Sandoval hearing (R 56-57), and had successfully argued a compromise allowing only the question of whether Mr. Carver had a felony conviction, had some legitimate strategic basis for allowing the prosecutor to tell the jury Mr. Carver had a prior conviction for burglary in the second degree, and that he was a burglar. 2 Nor can letting the prosecutor call Mr. Carver a liar be deemed reasonable and legitimate trial strategy, especially when the defense pursued was heavily reliant upon the jury believing his testimony. And no legitimate strategic purpose can be attributed to counsel’s failure to obj ect when (1) the prosecutor questioned Mr. Carver to demonstrate his post-arrest silence (failure to provide an innocent explanation to police) and (2) asked Mr. Carver whether the victim of the burglary was lying in her testimony and whether the police had lied in theirs. 4. Counsel’s failure to understand and accurately advise Mr. Carver regarding his right to challenge the constitutionality of his predicate conviction “The right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution” as “[t]here is then a real need for counsel.” (Gadsden v United States, 223 F2d 627, 630 [DC Cir 1955].) That “real 2 Although the court’s ruling is off the record, it appears the court permitted cross-examination regarding the burglary conviction notwithstanding its previous Sandoval ruling which allowed only for questioning about a one felony conviction without mention of the word “burglary,” after Mr. Carver opened the door (R 488-494). 52 need” was especially acute in this case as not only the length of the current sentence was at stake, but the predicate felony adjudication would be binding on Mr. Carver from that day forward (see CPL 400.15 [8]). Effective representation required that counsel correctly advise his client as to the rights afforded defendants in a predicate offender adjudication procedure. Counsel demonstrated his fundamental misunderstanding of the law during the second violent felony offender proceeding when, in response to the court’s question of whether Mr. Carver had a constitutional challenge to the prior conviction, defense counsel interjected with an incorrect rephrasing of the court’s question: “[the court] is asking you is there any appeals pending on that old case?” Mr. Carver answered “[n]o, sir.” The court then asked whether counsel had any objection to its signing of the certificate adjudicating Mr. Carver a second violent felony offender, and counsel agreed to Mr. Carver’s status as a predicate offender for enhanced sentencing purposes. (R 578.) Defense counsel’s verbal editing of the court’s question exposed his flawed understanding of his client’s right to challenge the constitutionality of his prior conviction, effectively depriving Mr. Carver of his right to make such a challenge. The question of whether there is a pending appeal of the conviction is simply not relevant and does not address the requisite inquiry – whether defendant claims the 53 prior conviction was obtained in violation of his constitutional rights. Mr. Carver may have had such a challenge even if an appeal of that prior conviction was not pending. Operating under that mistaken belief, counsel was not in a position to accurately assess the constitutionality of the prior conviction, and properly advise Mr. Carver. A defendant's failure to a ppeal a prior conviction does not constitute a forfeiture of the right to independently challenge the constitutionality of the subject conviction within the context of a predicate felony proceeding (People v Santiago, 91 AD3d 438, 439 [1st Dept 2012], citing People v Johnson, 196 AD2d 408 [1993], lv. denied 82 NY2d 806 [1993] [“Notwithstanding his failure to appeal from the 1985 conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained”]). “A conviction obtained in violation of one's constitutional rights may not be used to enhance punishment for another offense. (Burgett v Texas, 389 US 109 [1967].) Consistent with that principle, CPL 400.21 (subd. 7, par. [b]) provides that ‘[a] previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction.’” (People v Harris, 61 NY2d 9, 16 [1983]; see also People v Diggins, 11 NY3d 518 [2008].) 54 While some courts have held there is no duty on the part of the court to ask whether defendant has a constitutional challenge to the prior conviction (see People v Wood, 108 AD3d 932 [3d Dept 2013]; People v Sachs, 280 AD2d 966 [4th Dept 2001]), that does not relieve counsel of his duty to i nform his c lient regarding his right to make such a challenge, and apply the correct legal standard in doing so. Meaningful representation required that Mr. Carver be counseled in order to accurately understand his rights relative to the predicate proceeding, and be afforded the opportunity to challenge the constitutionality of the prior conviction. The record here indicates that counsel had not spoken with his client about his right to challenge the constitutionality of the prior conviction. Mr. Carver was not afforded the required understanding of his rights and options, or the opportunity to exercise them. His attorney’s deficient conduct denied him the process to which he was entitled. And unfortunately, the court did nothing to correct counsel, or properly explain Mr. Carver’s right to make a challenge to the constitutionality of the prior conviction. 5. Counsel’s failure to advocate for Mr. Carver at sentencing Defense counsel has a duty to advocate the accused's cause (see Strickland, 466 US at 688). Yet as Mr. Carver stood before the court facing a sentence of between seven and fifteen years (Penal Law § 70.04 [3]) on each of the two 55 burglary counts, when asked by the court whether he had anything to say, counsel responded: “No Judge. We had the trial before you, you heard the facts of the case, you understand what our position has been throughout the case, and I have nothing further to add at this time.” (R 582). He offered no advocacy for a lesser sentence; no mitigating circumstances. He did and said nothing to advance his client’s cause. Defense counsel has a clear duty at sentencing – to make the case for the most lenient sentence possible. Here, counsel presented no mitigating circumstances, no background information about his client, his upbringing, or his challenges due to hearing loss. Counsel never said he had read the Presentence Report, or that he had shared it with his client. H e never mentioned that the codefendant was sentenced to one year in the Monroe County Jail (PSR at 3), or that the offer before trial was seven years (R 69). When Mr. Carver was asked whether he knew of any legal reason why sentencing should not then be imposed, Mr. Carver responded that he did not “really know what’s going on here” and that he did not know what he was being charged with. Counsel did nothing to address those concerns and did not ask for even a few minutes to talk with his client. And the court merely responded that it 56 was attaching the letter Mr. Carver wrote to the court in which he outlined numerous instances of his attorney’s ineffectiveness. (R 169, 654-655). And if counsel was upset because of the letter Mr. Carver wrote to the court, he should have asked to be relieved and to have other counsel assigned. Certainly, the court would not be permitted to proceed with sentencing with in the absence of counsel (see People v Campbell, 281 AD2d 488 [2d Dept 2001]). Yet that is essentially what happened here as counsel engaged in absolutely no advocacy on behalf of his client. While in general “a defense counsel's inability to pe rsuade a sentencing court to im pose a lighter sentence does not constitute ineffective assistance of counsel (see People v Newell, 271 AD2d 873, 874 [3d Dept 2000]), here, counsel said nothing in an attempt to sway the court to impose a sentence of less than fifteen years. Mr. Carver was “effectively unassisted at the crucial stage of sentencing when he was exposed to a possible maximum aggregate sentence of thirty years imprisonment and a minimum term of seven years (People v Gonzalez, 43 AD2d 914 [1st Dept 1974]). Standing before the court was 48- year old Leroy Carver, who had served in the National Guard under active duty status in the 1980’s. He had lost most of his hearing in an accident while in the service, and “reads lips.” Beside one felony 57 conviction for burglary in 1999, his criminal record was insignificant, with just two violation-level offenses. Mr. Carver had no history of violent or assaultive behavior. The two current burglaries did not involve any sort of violence or threat of violence, and indeed, one of the homeowners was out of town at the time of the break-in. The burglaries involved no weapons. A co-defendant was sentenced to one year in the Monroe County Jail. (PSR, 1-5.) Mr. Carver had been offered a plea agreement with a promised sentence of seven years before trial (R 69). He was sentenced to more than twice that after trial, and his attorney made no case for leniency. Critically, this is not a case where the sentence was a forgone conclusion – where nothing counsel could have said would have altered the result (see e.g. (People v Church, 287 AD2d 788 [3d Dept 2001] [counsel’s failure to advocate for a specific sentence was not ineffective where the defendant had entered a guilty plea in exchange for a promised sentence, which was imposed]). To the contrary, the court in this case was faced with selecting a sentencing within the wide range of seven to fifteen years on each charge, and the sentences could have been ordered to run consecutively. This was a case where there was much advocating to be done, yet counsel said nothing. And the sentence the court imposed was even greater than the twelve years requested by the prosecutor. 58 Ineffective representation at sentencing was found in People v Washington (96 AD2d 996, 997-998 [3d Dept 1983]). There, during a persistent felony offender hearing, where a defendant must be afforded the opportunity to present “mitigating factors, e.g., his character, background and the circumstances of his prior conduct” the court asked whether the defense had any witnesses to offer. Counsel said no, explaining that he had not “really had the opportunity to talk with his client.” After the court agreed to give him the opportunity, counsel asked his client, on the record, if there was anything he wanted to tell the judge. When his client asked what he was supposed to tell the judge, counsel responded “[t]hat’s up to you.” Counsel did not elicit much from his client beyond that point, except for his age. On appeal, the court found the defendant “essentially unrepresented” at that point, counsel ineffective, and the hearing a sham. (Id. at 997 – 998.) No less can be said in this case. On the heels of counsel’s erroneous statement which deprived Mr. Carver the opportunity to m ake a constitutional challenge to his prior conviction, came counsel’s complete failure to advocate at the crucial time of sentencing (see People v Edmond, 84 AD2d 938 [4th Dept 1981]). “It is very basic that [i]f no actual ‘[a]ssistance’ ‘for’ the accused's ‘defence’ is provided, then the constitutional guarantee has been violated.” (Hurrell-Harring v State of New York, 15 NY3d 8, 59 22 [2010] [internal quotation marks and citations omitted].) Here, there was no actual assistance at sentencing. And the fact that defendant maintains his innocence at sentencing does not relieve counsel of his duty to advocate for leniency. O therwise, whenever a defendant disagrees with the guilty verdict and maintains his innocence, representation could be denied. Instead, mitigating circumstances need to be offered, background information supplied, and a plea for leniency made. None of that happened, and Mr. Carver was effectively unrepresented at the crucial time of sentencing. D. Counsel’s Deficient Representation Resulted In A Break-Down Of The Adversarial Process And An Unfair Trial. As demonstrated above, counsel’s performance in this case fell below a standard of objective reasonableness (see Strickland, 466 US at 687-688). As a result, under the circumstances of this case, given the particular errors and the cumulative effect of those errors, it cannot be said that the outcome of the proceeding is a reliable one (see id. at 694), or the trial a fair one (Benevento, 91 NY2d at 713-714). The “intrinsic premise and purpose of the constitutional right to e ffective representation” is the “necessity to achieve fairness to the accused within [the] adversary system” of criminal justice (Claudio, 83 NY2d 76). It has been 60 recognized that the “right to the effective assistance of counsel is the right of the accused, through his attorney, to su bject the prosecution's case to meaningful adversarial testing” and that the accused's attorney is responsible for ensuring "that the adversarial testing process works to produce a just result under the standards governing [the] decision." (People v Henriquez, 3 N Y3d 210, 228-230 [2004], G.B. Smith, J., dissenting, quoting Strickland, 466 US at 687.) W here the adversarial testing process has broken down, the accused has been deprived of his right to effective assistance of counsel (see Strickland, 466 US 687). Here, the adversarial testing process envisioned by the Sixth Amendment (see Cronic, 466 US 656) ceased to function due to c ounsel’s deficient performance. The demise of the adversarial process began with counsel’s failure to challenge the legality of police action that produced the evidence necessary to prosecute this case, despite the existence of a colorable basis for suppression. It continued with counsel’s failure to prepare or understand the scientific proof against his client, as evinced in his opening statement. Counsel then failed to object and protect Mr. Carver from the prosecutor’s improper and highly prejudicial questioning and summation comments. And at with Mr. Carver facing an increased sentence because of his prior felony conviction, counsel incorrectly led Mr. Carver to believe that a constitutional challenge to the prior conviction 61 could only be brought if there was a pending appeal of the prior conviction. Finally, at the crucial time of sentencing, with his client facing a wide range of possible punishment, counsel did nothing to advocate Mr. Carver’s cause. This is not a quibble with “with strategies, tactics or the scope of possible cross-examination” lodged long after trial (see e.g. People v Flores, 84 NY2d 184, 187 [1994]). This is a case where defense counsel’s deficiencies were so significant, and so undermined the proper functioning of the adversarial process, that counsel’s representation, viewed in its totality, was not meaningful, and a fair trial and a fair sentencing has been denied (see Oathout, 21 NY3d 127]; see also People v Bush, 107 AD3d 1302, 1303 [3d Dept 2013]; People v Arnold, 85 AD3d 1330, 1334 [3d Dept 2011]). N or can the proceedings be relied on “as having produced a just result" (Strickland, 466 US at 686). In People v Oathout (21 NY3d 127), this Court found that “[w]hile defense counsel's errors in this case individually may not constitute ineffective assistance, the cumulative effect of [defense] counsel's actions deprived defendant of meaningful representation." (Id. at 132 [internal quotation marks and citation omitted]). T he errors committed by counsel in Oathout were not shown to be individually prejudicial – but rather they collectively reflectived counsel’s lack of 62 knowledge of criminal law.3 “At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications.” (Id.) Here, Mr. Carver was entitled to counsel who would test the legality of the police conduct that resulted in the seizure of evidence upon which the prosecution’s case depended. H e was entitled to counsel who possessed an accurate understanding of the prosecution’s DNA evidence, and who would not tell the jury fallacies about that evidence. He was entitled to counsel who would object and protect his client’s right to a fair trial when the prosecutor engaged in improper and highly prejudicial questioning and argument. He was entitled to counsel who understood a defendant’s right to make a constitutional challenge to a prior conviction being used to increase his sentence. And he was entitled to counsel who would stand beside him at the crucial time of sentencing and advocate for leniency. “The right to effective counsel guarantees the defendant a zealous advocate to safeguard the defendant's interests” (People v Peque, 22 NY3d 168, 3 Counsel filed a notice of appeal after the preliminary hearing; moved for release of his client, unaware that the 45 day period ran from the time a defendant is held for grand jury action rather than the time of arraignment; waived a Wade hearing on the basis of the prosecutor’s contention that identification was confirmatory; conceded during the Huntley hearing that the questioning was not custodial; agreed to allow cross-examination on a prior conviction before the court precluded such; failed to object to uncharged crime testimony which should have been the subject of a Molineux ruling; admitted he was looking at a p iece of physical evidence for the first time at trial; was unaware that his client’s grand jury testimony could be used at trial; and failed to object when the prosecutor vouched for her witness in summation and referred to matters not in evidence. 63 190 [2013]) and in this case, where Mr. Carver’s counsel did none of those things, he was denied meaningful representation and a fair trial. E. Conclusion The Supreme Court, quoting Judge Wyzanski, in United States ex rel Williams v Twomey (510 F2d 634, 640 [7th Cir 1975]), has recognized that “[w]hile a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.” (Cronic, 466 US at 656 -657.) Here, given the nature and character of counsel’s failings, his erroneous understanding of both evidence and the law, and his failure to advocate Mr. Carver’s cause, counsel’s representation was closer to the latter.