The People, Respondent,v.Jocelyn Clermont, Appellant.

Brief

N.Y.September 11, 2013

To be argued by SUZANNE H. SULLIVAN (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against JOCELYN CLERMONT, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5848 JOHN M. CASTELLANO SUZANNE H. SULLIVAN Assistant District Attorneys Of Counsel FEBRUARY 7, 2013 Queens County Indictment Number 726/07 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 DEFENDANT’S DIRECT APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Suppression Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Defendant’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT THE APPELLATE DIVISION CORRECTLY FOUND THAT DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SUPPRESSION HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TABLE OF AUTHORITIES Page No. Cases Bell v. Cone, 535 U.S. 685 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Illinois v. Wardlow, 528 U.S. 119 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Antonio A., 249 A.D.2d 202 (1 Dept. 1998).. . . . . . . . . . . . . . . . . . . . 27st People v. Abdul-Malik, 298 A.D.2d 595 (2d Dept. 2002). . . . . . . . . . . . . . . . . . . 27 People v. Aiken, 45 N.Y.2d 394 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Baker, 14 N.Y.3d 266 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Balanco, 158 A.D.2d 367 (1 Dept. 1990). . . . . . . . . . . . . . . . . . . . . . 28st People v. Baldi, 54 N.Y.2d 137 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 19 People v. Benevento, 91 N.Y.2d 708 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 People v. Borrell, 12 N.Y.3d 365 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Brown, 175 A.D.2d 210 (2d Dept. 1991).. . . . . . . . . . . . . . . . . . . . . . . 22 People v. Caban, 5 N.Y.3d 143 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Clermont, 95 A.D.3d 1349 (2d Dept. 2012). . . . . . . . . . . . . . . . . . . 5, 20 People v. Cummings, 16 N.Y.3d 784 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. DeBour, 40 N.Y.2d 210 (1976). . . . . . . . . . . . . . . . . . . . . . . . . 13, 25, 28 People v. Feliciano, 17 N.Y.3d 14 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 23 People v. Feliz, 45 A.D.3d 437 (1 Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 29st ii People v. Flores, 84 N.Y.2d 184 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Gifford, 285 A.D.2d 669 (3d Dept. 2001). . . . . . . . . . . . . . . . . . . . . . . 20 People v. Henry, 95 N.Y.2d 563 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 People v. Hollman, 79 N.Y.2d 181 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 25 People v. Holmes, 81 N.Y.2d 1056 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Keating, 18 N.Y.3d 932 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23 People v. Leung, 68 N.Y.2d 734 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Martinez, 80 N.Y.2d 444 (1992). . . . . . . . . . . . . . . . . . . . . . . . 10, 24, 26 People v. McIntosh, 96 N.Y.2d 521 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26 People v. Pines, 99 N.Y.2d 525 (2002). . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 24, 29 People v. Reyes, 83 N.Y.2d 945 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 People v. Riddick, 70 A.D.3d 1421 (4 Dept. 2010). . . . . . . . . . . . . . . . . . . . . . . 28th People v. Rivera, 71 N.Y.2d 705 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Roberts, 63 A.D.3d 1294 (3d Dept. 2009). . . . . . . . . . . . . . . . . . . . . . . 20 People v. Salva, 228 A.D.2d 344 (1 Dept. 1996). . . . . . . . . . . . . . . . . . . . . . . . . 28st People v. Satterfield, 66 N.Y.2d 796 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 People v. Selby, 220 A.D.2d 544 (2d Dept. 1995).. . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Sergeant, 281 A.D.2d 438 (2d Dept. 2001). . . . . . . . . . . . . . . . . . . . . . 26 People v. Shervington, 25 A.D.3d 628 (2d Dept. 2006). . . . . . . . . . . . . . . . . 26, 28 People v. Sierra, 83 N.Y.2d 928 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28 iii People v. Stephens, 47 A.D.3d 586 (1 Dept. 2008). . . . . . . . . . . . . . . . . . . . . . . 28st People v. Turner, 5 N.Y.3d 476 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16 People v. Velasquez, 217 A.D.2d 510 (1 Dept. 1995). . . . . . . . . . . . . . . . . . . . . 29st People v. Williams, 17 N.Y.3d 834 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Woods, 98 N.Y.2d 627 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Wynn, 25 A.D.3d 576 (2d Dept. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 29 Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . 17, 18 Statutes N.Y. Const., art. 1, § 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Penal Law § 205.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 U.S. Const. 6 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17th iv COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------ x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JOCELYN CLERMONT, : Defendant-Appellant. : ------------------------------------------------------------------ x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Robert J. Miller, defendant Jocelyn Clermont appeals from a May 30, 2012 order of the Appellate Division, Second Department. That order affirmed defendant’s June 2, 2008, conviction, after a jury trial, for Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]) and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [1] and [4]). Defendant was sentenced to concurrent, determinate prison terms of eight years with three years’ post-release supervision on the second-degree weapon possession count and three years’ with two years’ post- release supervision on the third-degree weapon possession counts. Defendant is currently incarcerated pursuant to this judgment of conviction. INTRODUCTION On October 15, 2006, at approximately 9:15 p.m., Detective John Lunt and Police Officer Michael Duffy, members of the New York City Police Department, Queens Gang Squad, were on routine patrol in the South Jamaica section of Queens County. While driving in an unmarked vehicle, Detective Lunt and Officer Duffy saw defendant and another individual walking down the street in an area known for activity of the Bloods, a notoriously violent street gang. Both observed defendant repeatedly adjust his waistband, in a manner indicative of possessing a weapon there. After watching defendant, Detective Lunt stopped his vehicle, displayed his shield, and identified himself as a detective when he got out of the car, although he effected no forcible stop at that time. When defendant saw the police, he ran in the opposite direction. Detective Lunt’s suspicions were heightened, and he chased after defendant. While chasing defendant, Detective Lunt saw him take a firearm out of the right side of his waistband and throw it onto the ground. Defendant then jumped over a fence leading to another backyard. Detective Lunt caught up with defendant and arrested him. The detective then recovered the firearm from a nearby backyard. As a result, defendant was arrested and charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]), two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]and 2 [4]), and Resisting Arrest (Penal Law § 205.30) (Queens County Indictment No. 726/07). Defense counsel filed a pretrial motion asking for various forms of relief, including inspection of the Grand Jury minutes and dismissal of the indictment and an order directing pretrial discovery in many particulars. He also moved for suppression of the handgun, claiming that the police did not have probable cause to arrest him, and, thus, the recovery of the handgun was the product of an illegal seizure. On September 5, 2007, a Mapp hearing was held before Justice Michael B. Aloise, Supreme Court, Queens County. While counsel initially moved to be relieved from the case prior to the hearing, he stated, upon questioning by the court, that he was prepared to conduct the hearing and could then renew his application to be relieved prior to trial. At the hearing, counsel cross-examined the sole police witness both as to the fact that he had received no radio run, was not assigned to look for a specific individual or any activity in particular, and did not stop defendant based anything other than his observations. At the conclusion of the one-witness hearing, neither defendant nor the prosecutor made any closing argument. The hearing court then orally denied defendant’s motion to suppress the physical evidence. In a later written decision, the hearing court made a finding of fact inconsistent with the testimony, but one that was not dispositive of the claim. 3 On May 6, 2008, defendant proceeded to trial before Justice Kenneth Holder, of the Supreme Court, Queens County, and a jury. At the conclusion of the trial, the jury convicted defendant of all of the weapon possession charges, but acquitted him of Resisting Arrest. On June 2, 2008, the court sentenced defendant as noted above. DEFENDANT’S DIRECT APPEAL In December of 2010, defendant appealed his judgment of conviction through assigned counsel, and claimed, inter alia, that his attorney was ineffective in failing to make a closing argument at the suppression hearing. Further, defendant claimed that counsel’s failure to argue for suppression of the handgun on the ground that the police did not have reasonable suspicion to pursue him rendered his representation ineffective. On March 22, 2011, the People filed a response to defendant’s brief, opposing defendant’s claim. The People argued that defense counsel provided defendant with meaningful representation at his pre-trial suppression hearing by filing a motion to suppress the handgun that was granted to the extent that a Mapp hearing was ordered, by cross-examining the People’s witness thoroughly, highlighting that the detective was not assigned to look for a specific individual or any activity in particular; did not stop defendant based anything other than his observations; and challenged the detective’s ability to fully recall the events surrounding defendant’s 4 arrest. And, contrary to defendant’s claim, the fact that counsel made no opening and closing arguments did not affect his competency. In fact, the prosecutor too made no argument. Moreover, the record from the suppression hearing demonstrated that, despite his request to be relieved, defense counsel was prepared for the hearing. Thus, the People contended, because the record on appeal demonstrated that defendant was afforded meaningful and competent representation at the suppression hearing, the Appellate Division should deny defendant’s claim. On May 30, 2012, in a majority opinion, the Appellate Division, Second Department, affirmed defendant’s judgment of conviction. People v. Clermont, 95 A.D.3d 1349 (2d Dept. 2012). The Appellate Division held that, “notwithstanding the absence of an opening or closing statement and the suppression court’s mistaken factual finding as to when the defendant dropped the weapon . . . the evidence, the law, and the particular circumstances of the case, viewed in totality, revealed that defense counsel provided meaningful representation.” Id. at 1351. In support of its decision, the court found that defense counsel moved for, and obtained, a suppression hearing. Further, at the hearing, counsel’s cross-examination of the People’s witness was reasonably competent and thorough. The court also noted that in lieu of a closing argument, both the prosecutor and defense counsel relied on the record. Id. at 1351. In dissent, Justice Robert J. Miller, determined that counsel’s “overall failure to advocate on his client’s behalf before, during, and after the suppression 5 hearing show[ed] the absence of meaningful adversarial representation.” Id. at 1356. Justice Miller noted several instances where he believed counsel failed in his advocacy. For instance, counsel’s affidavit in support of a Mapp hearing “consisted of arguments addressed to a different case involving a separate set of facts and distinct legal issues.” Id. at 1351. Additionally, in his omnibus motion, counsel stated that he was unaware of many of the facts of the case and requested the opportunity to submit a memorandum of law after the suppression hearing. Defense counsel’s performance at the Mapp hearing was also ineffective, according to the dissenter. First, counsel asked to be relieved from representing defendant, and cited to his overwhelming amount of work. Next, counsel declined the opportunity to make an opening statement. Moreover, at the close of the evidence, counsel chose to rely on the record and not make any legal argument. Id. at 1353. Finally, the dissenter, noting something that even defendant had not raised in his brief, relied on the fact that defense counsel failed to alert the court to a factual error in its eventual written decision. Id. As a result, Justice Miller found that defendant received the ineffective assistance of counsel. Defendant then sought leave to appeal to this Court, and Justice Miller of the Appellate Division granted defendant’s application for leave to appeal. 6 SUMMARY OF ARGUMENT This Court should affirm the decision of the Appellate Division, Second Department because that court correctly found that, viewed in the context of his overall representation, defendant’s attorney provided defendant with meaningful representation. While defendant is entitled to competent counsel, the standard for effective assistance is not high, in fact it is “undemanding.” People v. Borrell, 12 N.Y.3d 365, 368 (2009), quoting People v. Turner, 5 N.Y.3d 476, 482 (2005). As this Court has stated, the relevant and, indeed, dispositive threshold issue is not whether defendant’s representation could have been better but whether it was, on the whole, constitutionally adequate. Only this “less exacting standard” need be met by counsel. People v. Borrell, 12 N.Y.3d at 370. Here, defense counsel filed an omnibus motion for various forms of relief, including dismissal of the indictment, pretrial discovery, and a suppression hearing. A suppression hearing was granted as a result of the motion, as was pretrial discovery. Moreover, at the hearing, defense counsel’s performance showed that he was competent and thorough, cross-examining the sole witness about his lack of any specific information that would cause him to focus his attention on defendant and challenged the detective’s ability to fully recall the events surrounding defendant’s arrest. 7 The errors now alleged by defendant are either not errors at all or non- prejudicial. Counsel’s allegedly inconsistent recitation of facts in his motion papers was inconsequential, as he obtained a hearing in any event. Similarly, contrary to defendant’s current contention, counsel clearly stated that he was prepared to go forward with the hearing, even if not prepared to conduct a full trial (Hearing: 2-3; Appendix: 42-43). Counsel’s failure to orally argue his suppression motion after a short, one-witness hearing was not below professional norms, and the prosecutor too made no argument after the brief hearing, as none was necessary. The only arguable default of counsel was failing to call the court’s attention to the factual error in its written decision. But this single potential error was not so “egregious and prejudicial,” and certainly not so “clear-cut and dispositive,” as to cause this single default to render counsel’s representation ineffective. While a single error may constitute ineffective assistance of counsel, the case in which this will occur is “rare.” People v. Borrell, 12 N.Y.3d at 368; People v. Keating, 18 N.Y.3d 932 (2012). In order for a single error to rise to the level of a violation of defendant’s right to effective representation, the error must be both “clear-cut and completely dispositive.” Id. Indeed, even where it might ultimately be determined that the defendant’s contention is correct, a finding of ineffectiveness is not necessary unless counsel’s inadequacy and the eventual outcome of the omitted argument are absolutely clear. Id. at 934. Where, by contrast, the outcome of the 8 purported defect in counsel’s representation is uncertain, the representation is not so “egregious and prejudicial” as to present a successful claim of ineffectiveness. As this Court has repeatedly stated, “counsel is not ineffective for failing to raise an issue of uncertain efficacy . . .” People v. Feliciano, 17 N.Y.3d 14 (2011); People v. Borrell, 12 N.Y.3d at 369. Here, the question of whether the conduct of the police in approaching defendant, and, upon his flight, chasing him, is by no means clear-cut, but depends instead upon the inferences to be drawn from the evidence at the hearing and the observations of the experienced Gang Squad officers in a gang-prone area. This is at best a quintessential mixed question of law and fact, hardly susceptible of a clear-cut answer. See People v. Williams, 17 N.Y.3d 834 (2011). Moreover, based on the record before the suppression court, there was more than ample reason to believe that the court would rule against defendant in any event. The hearing testimony established that Detective John Lunt, a ten-year veteran of the police department with six years specifically in the Gang Squad, observed defendant in a high-crime area where activity of the violent Bloods gang was common. Defendant repeatedly adjusted his waistband, giving a tell-tale indication of the possession of a weapon. The police officers approached at that time with more than enough suspicion to exercise the common law right of inquiry, and, upon defendant’s immediate flight, the police had reasonable suspicion that criminal 9 activity was afoot. See People v. Martinez, 80 N.Y.2d 444 (1992). At the very least, the hearing testimony provided ample inferences from which a hearing judge could so conclude. Thus, the failure to challenge the written factual findings of the court, even if error, had no egregious and prejudicial effect, as it was not at all “clear-cut,” indeed not likely at all, that the suppression motion would have been granted if the argument had been made. Counsel was thus not required to raise this issue of “uncertain efficacy.” Indeed, this Court has held, under strikingly similar factual circumstances, that police pursuit was justified when a defendant fled after acting in manner indicative of possessing a weapon. See People v. Pines, 99 N.Y.2d 525 (2002). In that case, the police saw the defendant and his companion acting nervously and then saw defendant cupping his jacket in a manner indicative of possibly possessing a gun. When the police approached defendant, he ran. The police officers’ initial observations give rise to a “founded suspicion” that the defendant may have been engaged in criminal activity, and “defendant’s flight upon the approach of the officers, and the additional suspicion engendered by it, . . . gave rise to a reasonable suspicion of criminal conduct, justifying pursuit.” Id. at 527. Thus, the failure of counsel to point out the factual error in the court’s written decision was not “egregious and prejudicial,” as the conduct of the police in this case was perfectly proper in any event. At the very least, defendant has failed to show that a different 10 ruling by the court on the suppression issue was “clear-cut” or that the factual difference was “completely dispositive.” In short, viewed in the context of his overall performance, defendant’s attorney provided defendant with meaningful representation. Moreover, any mistakes that counsel may have made during his representation did not prejudice defendant. Thus, the Appellate Division correctly found that counsel provided defendant with meaningful representation at the suppression hearing. FACTUAL BACKGROUND The Suppression Hearing Before trial, defendant moved to suppress the evidence in this case and a suppression hearing was held before the Honorable Michael B. Aloise. Prior to the start of the hearing, defense counsel filed a motion to be relieved. Counsel informed the court that his associate had resigned and that the numerous immigration court hearings he had scheduled would “interrupt the flow of this case” (Hearing: 2; Appendix: 42). In response to the court’s question regarding whether he could move forward with the hearing, counsel answered, “Certainly I can do the hearing” and informed the court that he would make his motion to be relieved at the conclusion of the hearing (Hearing: 3; Appendix: 43). 1 At the end of all the evidence, and pursuant to defense counsel’s request, the court then1 relieved him (Hearing: 14; Appendix: 54). 11 At the hearing, Detective Lunt testified that he was a ten-year veteran of the New York City Police Department and had been assigned to the Queens Gang Squad for the past six years. On October 15, 2006, at approximately 9:15 p.m., he was conducting routine patrol. Detective Lunt testified that he and his partner were in an unmarked police car, within the confines of the 113 Precinct. That area wasth known to be a location for the “Bloods” gang and he had been aware of criminal activity in the area. As they were driving, Detective Lunt observed two individuals walking down the street. One of the individuals – defendant – was making “constant adjustments” to his waistband area (Hearing: 5-7, 10, 13; Appendix: 45-47, 50, 53). Detective Lunt further testified that, after observing defendant’s actions, he stopped his vehicle about ten to fifteen yards away from defendant and the other individual. The lighting conditions were “somewhat sufficient.” He exited his vehicle, displayed his shield, and identified himself as a detective (Hearing: 7-8, 12; Appendix: 47-48, 52). Defendant immediately ran from the detective, and Detective Lunt chased after him. Defendant, who was about ten yards ahead, entered a driveway and ran through several residential backyards (Hearing: 8, 12; Appendix: 48, 52). While chasing defendant, Detective Lunt testified that he saw defendant take a firearm out of the right side of his waistband and throw it onto the ground. Defendant then jumped over a fence leading to another backyard. He hit the ground and was 12 breathing heavily. Detective Lunt caught up with defendant and handcuffed him (Hearing: 8; Appendix: 48). Shortly thereafter, Detective Lunt testified that he recovered the firearm from a yard where he saw defendant throw it (Hearing: 9; Appendix: 49). 2 Defendant’s Case Defendant declined to call any witnesses and rested (Hearing: 13; Appendix: 53). The Court’s Decision The hearing court initially denied suppression orally, without making specific findings of fact. Later, in a written decision, the court again denied suppression, this time with factual specifications (Aloise, J.). Citing to People v. DeBour, 40 N.Y.2d 210 (1976), and People v. Hollman, 79 N.Y.2d 181 (1992), the court found that an officer had the right to request information from a defendant, such as his name and address, when the request is supported by an objective, credible reason, not necessarily indicative of criminality. Here, the court found that the detective’s initial approach was reasonable based upon his observation of defendant’s continuous adjustment of his waistband area while walking in a known gang location. And, once the detective observed defendant throw the gun on the ground, he was justified in chasing him and subsequently arresting him and recovering the gun. The On cross-examination, Detective Lunt was unable to recall what defendant wore at the time2 of his arrest (Hearing: 12; Appendix: 52). 13 court held, therefore, that the gun was admissible based upon the plain view doctrine (Decision: 2; Appendix: 40). ARGUMENT THE APPELLATE DIVISION CORRECTLY FOUND THAT DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SUPPRESSION HEARING. Defense counsel provided defendant with effective assistance. Defense counsel made appropriate pre-trial motions for inspection of the Grand Jury minutes, discovery, and a hearing, and, after obtaining a hearing, did a competent and thorough job cross-examining the People’s sole witness. Viewed in the context of his overall performance, defendant’s attorney provided defendant with meaningful representation. Defendant nevertheless claims that his attorney was ineffective because his allegations regarding suppression in his motion papers were inadequate, because he was not satisfactorily prepared to conduct the hearing, because he made no closing argument at the end of the hearing, and because he failed to correct the suppression court’s factual error in its written decision. But these purported errors were either not errors at all or not so “egregious and prejudicial” as to warrant a finding of ineffectiveness. Any error that may have existed in the allegations in counsel’s motion papers were inconsequential, as the court granted a hearing in any event. In addition, counsel specifically affirmed on the record that he was prepared to conduct 14 the hearing, which he ably did. Moreover, no closing argument was necessary after the brief, one-witness hearing at which opposing counsel made no closing argument either. Finally, any error in failing to correct the hearing court’s factual mistake in its eventual written decision was far from the type of “clear-cut and completely dispositive” error that would render counsel ineffective. See People v. Borrell, 12 N.Y.2d at 369. The hearing court had more than ample ground to find against defendant regardless of the fact in issue, given defendant’s specific behavior indicative of the possession of a weapon, in a gang-prone neighborhood, and immediate high-speed flight before even a single question could be asked. See People v. Pines, 99 N.Y.2d 525 (2002) (defendant’s nervous behavior in crime-prone area and cupping of jacket in a manner indicative of possessing a weapon allowed police to approach defendant and pursue him upon his flight). At the very least, the ultimate determination on the question of reasonable suspicion involved questions of fact and the inferences to be drawn from the facts, rather than a “clear-cut” legal determination, and, in the absence of a showing that counsel’s potential error was both “clear-cut and completely dispositive,” his single potential default was not such that counsel’s entire representation was prejudicially ineffective. The record demonstrates that defendant was afforded meaningful and competent representation and was not deprived of his right to a fair trial. 15 The right to the effective assistance of counsel is guaranteed under both the Federal and State Constitutions. See U.S. Const., 6th Amend.; N.Y. Const., art. I, § 6. Under the New York rule, what qualifies as effective assistance varies with the unique circumstances of each representation. People v. Benevento, 91 N.Y.2d 708, 712 (1998); People v. Baldi, 54 N.Y.2d 137 (1981). In order to succeed on a claim that trial counsel was ineffective under the state constitution, a defendant must demonstrate, viewing the totality of the evidence, the law, and the circumstances of that particular case, that counsel failed to provide “meaningful representation.” People v. Baker, 14 N.Y.3d 266, 270 (2010); see also People v. Satterfield, 66 N.Y.2d 796, 798-799 (1985). The meaningful representation standard is not a stringent one; it is, in fact, “undemanding.” People v. Borrell, 12 N.Y.3d at 368, quoting People v. Turner, 5 N.Y.3d 476, 482 (2005). The essential inquiry in assessing whether counsel’s representation was meaningful is not whether counsel could have performed better of achieved a better result, rather, it is whether, when viewed objectively, it is constitutionally adequate. Id. at 368. In addition, the meaningful representation standard “includes a prejudice component which focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case.” People v. Henry, 95 N.Y.2d 563, 566 (2000), citing People v. Benevento, 91 N.Y.2d at 714. 16 Courts should apply a “flexible approach” when evaluating ineffective assistance of counsel claims. People v. Henry, 95 N.Y.2d at 565, citing People v. Benevento, 91 N.Y.2d at 712. The question is whether the attorney committed “egregious and prejudicial” error such that the defendant did not receive a fair trial. See People v. Benevento, 91 N.Y.2d at 713 (quoting People v. Flores, 84 N.Y.2d 184, 188-189 [1994]). What is guaranteed is a fair trial, “not necessarily a perfect one.” People v. Benevento, 91 N.Y.2d at 712; see also Flores, 84 N.Y.2d at 187. When applying this standard, however, courts must take care not to accord “undue significance” to retrospective analysis. People v. Benevento, 91 N.Y.2d at 712; People v. Baldi, 54 N.Y.2d at 145. So long as the defendant was afforded “meaningful representation,” it is irrelevant whether a course chosen by a defendant’s counsel was the best course to pursue, or even a good one. People v. Satterfield, 66 N.Y.2d at 799-800. In order to establish a claim of ineffectiveness under the Sixth Amendment to the United States Constitution, defendant must satisfy a similar, but somewhat different test. Strickland v. Washington, 466 U.S. 668 (1984). A defendant must demonstrate, first, that counsel’s performance fell below an objective standard of reasonableness and second, that the deficient performance deprived the defendant of a fair result. See People v. Benevento, 91 N.Y.2d at 713. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable 17 professional assistance.” Strickland v. Washington, 466 U.S. at 689. And it is the defendant’s burden not only to overcome the strong presumption of reasonable professional assistance, but also to demonstrate a reasonable probability that, but for the substandard performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. at 689, 694. In the instant case, defendant cannot show that he was not provided with meaningful representation, and he cannot show that he was prejudiced by counsel’s actions. In this case, a review of counsel’s representation as a whole shows that counsel provided defendant with effective representation. In his pretrial motion, counsel moved to inspect the Grand Jury minutes and dismiss the indictment, and made an extensive motion for pretrial discovery, including any statements made by defendant or other witnesses, photographs, either of defendant or of the crime location, any and all police reports, notes, and memoranda, forensic evidence, Rosario material, and any evidence of defendant’s prior uncharged criminal acts. Further, counsel sought to preclude the People from inquiring into defendant’s criminal history should he exercise his right to testify. Counsel also moved for suppression, as a result of which a suppression hearing was granted. During the hearing, counsel cross-examined the People’s witness, Detective Lunt, and tried to demonstrate that the detective was not searching for any specific criminal activity or for anyone in particular to show that they did not come 18 upon defendant under suspicious circumstances or with any pre-existing information about a crime. Moreover, counsel challenged the detective’s memory of such details as the color of the gun, the clothing defendant wore, and the lighting conditions to cast doubt on the detective’s ability to recall the events (Hearing: 10-12; Appendix: 50-52). In short, counsel provided defendant with meaningful representation throughout the suppression hearing. Defendant nevertheless claims that his attorney was ineffective because his allegations regarding suppression in his motion papers were inapposite, because he was not satisfactorily prepared to conduct the hearing, because he made no closing argument at the end of the hearing, and because he failed to correct the suppression court’s factual error in its written decision. But these purported errors were either not errors at all or not “egregious and prejudicial” as to warrant a finding of ineffectiveness. First, defendant argues that his counsel was ineffective because his written motion to suppress prior to the hearing was based on facts inconsistent with those that came out at the hearing (Defendant’s Brief at 20). This Court, however, should reject this claim because defendant did not suffer any prejudice from this oversight. Despite any error in this regard, the court granted defendant a Mapp hearing to determine whether the police conduct was illegal such that the gun should be suppressed. See People v. Baldi, 54 N.Y.2d 137, 149-50 (1980)(counsel’s 19 participation in eliciting statements in front of District Attorney without written waiver not ineffective where statements were suppressed); see People v. Roberts, 63 A.D.3d 1294 (3 Dept. 2009); People v. Gifford, 285 A.D.2d 669 (3 Dept. 2001). rd rd Thus, despite the factual error in defense counsel’s motion, the hearing court granted his motion and, therefore, defendant suffered no prejudice. And, while not adopted by defendant here, Justice Miller, in support of his finding that counsel was ineffective, relied upon the fact that, in defense counsel’s omnibus motion, he noted that he was “presently unaware of many of the relevant facts necessary to [the] preparation of the defense in this matter” and requested the opportunity to submit a memorandum of law after the suppression hearing. Clermont, 95 A.D.3d at 1352. But this Court should not rely upon this statement as establishing ineffectiveness. First, this was a routine, general statement by counsel for the purpose of reserving his right to file any further motions in this case, and counsel would have been remiss to not have included it in his motion. Second, counsel filed his motion on May 7, 2007, four months before the suppression hearing was held, and before any meaningful discovery was provided, and there is nothing in the record to suggest that counsel did not familiarize himself with the facts and the law before moving forward with the hearing. Indeed, counsel specifically informed the suppression court that he was prepared for the hearing (Hearing: 3; Appendix: 43). Thus, this claim should not provide a basis for finding counsel ineffective. 20 Defendant also claims that his attorney was ineffective because counsel asked to be relieved before the suppression hearing (Defendant’s Brief at 21-22). But this claim is belied by the hearing transcript. Indeed, in response to the hearing court’s inquiry as to whether counsel – despite having other obligations – was prepared to move forward with the hearing, counsel answered, “I could do the hearing” (Hearing: 3; Appendix: 43). Then, with reference to his motion to be relieved, counsel stated, “I could do the hearing and then I will do my motion.” Id. Undoubtedly, had counsel been unprepared to represent defendant during the hearing, he would have informed the court as much. Instead, he confirmed that he was able to move forward with the hearing, and there is nothing in the record to suggest otherwise. Defendant further contends that his attorney was ineffective for failing, at the close of the Mapp hearing, to make a legal argument that the police pursuit of defendant, who discarded the gun during the chase, was not premised on the requisite reasonable suspicion (Defendant’s Brief at 13, 22-23). But this claim is meritless for several reasons. First, this Court should reject defendant’s claim because, if the failure to seek suppression does not, by itself, constitute ineffective assistance, as this Court has stated, then, certainly, the failure to argue at the conclusion of a suppression hearing cannot rise to the level of ineffective assistance. See People v. Rivera, 71 21 N.Y.2d 705 (1988)(failure to make pre-trial motion “does not, by itself, establish ineffective assistance”); see also People v. Brown, 175 A.D.2d 210 (2d Dept. 1991). Further, this Court should reject defendant’s claim because, under both State and Federal Law, counsel’s waiver of an opening and closing statement is not necessarily indicative of ineffective legal representation. People v. Aiken, 45 N.Y.2d 394, 400 (1978); see Bell v. Cone, 535 U.S. 685 (2002) (failure to adduce mitigating factors and waiver of closing argument in punishment phase of death-penalty case not ineffective). Second, this Court should reject this claim because counsel did not err on this basis nor did defendant suffer any prejudice. The hearing was involved only one brief witness, covering no more than 15 pages of transcript. Moreover, it was apparent to all that the issue before the hearing court was the legality of the police conduct. Nor did the evidence at the hearing present a particularly complicated set of facts. In addition, the court did not ask for oral argument or question the parties on their respective positions. Because the hearing was exceedingly brief, because the facts were not complex, and because neither the court nor the parties felt oral argument was necessary, counsel was not ineffective for failing to make a closing argument. Finally, defendant now claims that counsel was ineffective for not correcting the hearing court’s error regarding the order of events leading to 22 defendant’s arrest (Defendant’s Brief at 21). Even assuming that this was error, it was not so “egregious and prejudicial,” and certainly not so “clear cut” as to have rendered all of counsel’s performance inadequate. While a single error may constitute ineffective assistance of counsel, the case in which this will occur is “rare.” People v. Borrell, 12 N.Y.3d at 368; People v. Keating, 18 N.Y.3d at 934. In order for a single error to rise to the level of a violation of defendant’s right to effective representation, the error must be both “clear-cut and completely dispositive.” Id. Indeed, even where it might ultimately be determined that the defendant’s contention is correct, a finding of ineffectiveness is not necessary unless counsel’s inadequacy and the eventual outcome of the omitted argument are absolutely clear. Id. at 934. Where, by contrast, the outcome of the purported defect in counsel’s representation is uncertain, the representation is not so “egregious and prejudicial” as to present a successful claim of ineffectiveness. As this Court has repeatedly stated, “counsel is not ineffective for failing to raise an issue of uncertain efficacy . . .” People v. Feliciano, 17 N.Y.3d 14 (2011); People v. Borrell, 12 N.Y.3d at369. Here, the claim was not at all certain or clear-cut. This is so for three reasons. First, the question of whether the police possessed reasonable suspicion at the moment they pursued defendant is a mixed question of law and fact, involving a factual assessment of the evidence, drawing inferences from the facts, and comparing 23 those inferences with the somewhat general reasonable suspicion standard. See, e.g., People v. McIntosh, 96 N.Y.2d 521 (2001)(compliance with DeBour a mixed question of law and fact); People v. Pines, 99 N.Y.2d 525 (2002). Indeed, what constitutes reasonable suspicion varies greatly depending upon the individual circumstances and the only thing that can be said with certainty is that reasonable suspicion is “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand.” People v. Martinez, 80 N.Y.2d 444, 448 (1992). This determination simply does not lend itself to a quick, easy, or “clear-cut” conclusion such that counsel’s failure to pursue it would, by itself, render counsel’s representation as a whole inadequate. Second, some evidence that this issue was not so apparent can be found in the Appellate Division in this case. Had this claim been so clear-cut, defendant undoubtedly would have discussed it in his Appellate Division brief. Defense counsel, therefore, cannot be deemed ineffective for this oversight. Third, under the facts as borne out by the detective’s hearing testimony, there was a more than ample basis for the court to conclude that the police conduct was proper at every juncture and suppression of the handgun was not warranted. It was, therefore, reasonable for defendant’s attorney to decline to correct the hearing court’s decision because he had no reason to believe that a factual correction would have changed the result of the hearing. See People v. Caban, 5 N.Y.3d 143, 152 24 (2005)(counsel not ineffective for failing to make a motion that had little or no chance of success); see also People v. Cummings, 16 N.Y.3d 784 (2011). To evaluate the appropriateness of police-initiated encounters, this Court has devised a four-tier approach. People v. DeBour, 40 N.Y.2d 210 (1976). First, the minimal intrusion of approaching and requesting information is permissible when an officer has some objective credible reason, not necessarily indicative of criminality. Second, the common-law right of inquiry is activated by a founded suspicion that criminality is at hand. With the common-law right of inquiry, an officer’s questions may be extended and accusatory so that the individual stopped may believe that he or she is suspected of some wrongdoing. Third, when an officer has a reasonable suspicion that a particular individual was involved in a felony or misdemeanor, the officer may forcibly stop and detain that person. Fourth, a police officer may arrest a person when he or she has probable cause to believe that the individual has committed a crime. People v. Hollman, 79 N.Y.2d 181, 184-85 (1992); DeBour, 40 N.Y.2d at 223. Reasonableness is the governing standard in assessing the appropriateness of police conduct in search and seizure cases. DeBour, 40 N.Y.2d at 218. Assessing the reasonableness of police conduct requires a balancing of the defendant’s interest in being free from government interference and the interest of the state in apprehending criminals. Id. at 217. 25 In addition, a suspect’s flight from police officers can constitute reasonable suspicion, justifying police pursuit of that suspect, if it is accompanied by other indications of criminality. People v. Woods, 98 N.Y.2d 627 (2002); People v. Sierra, 83 N.Y.2d 928, 930 (1994); People v. Holmes, 81 N.Y.2d 1056 (1993); see also Illinois v. Wardlow, 528 U.S. 119 (2000). Thus, a defendant’s flight from police is a factor considered by courts to determine if the totality of circumstances demonstrate reasonable suspicion. See People v. Sergeant, 281 A.D.2d 438 (2d Dept. 2001); see also People v. Shervington, 25 A.D.3d 628 (2d Dept. 2006); People v. Selby, 220 A.D.2d 544, 544-45 (2d Dept. 1995). Here, many factors support the hearing court’s conclusion that the officer’s conduct was proper because the officer possessed sufficient reasonable suspicion to detain defendant. Reasonable suspicion “represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand.” People v. Martinez, 80 N.Y.2d 444, 448 (1992). First, one factor in determining reasonable suspicion was defendant presence in an area known for its high instances of illegal gang-related crime. See People v. McIntosh, 96 N.Y.2d 521, 526 (2001). While presence in a high-crime area, by itself, is insufficient to provide reasonable suspicion, when coupled with defendant’s behavior, it is an important factor in determining whether that standard 26 is met. People v. Reyes, 83 N.Y.2d 945 (1994) (request for information was justified where defendant was observed in a drug prone area walking away from a group of men and clutching the inside of his jacket as a marked police van approached). Next, another important factor supporting reasonable suspicion was the fact that the officers observed defendant repeatedly adjust the right side of his waistband, which – based upon their training and experience – was indicative of weapon possession. Indeed, Detective Lunt had been a police officer for ten years, six of which he was specifically assigned to investigate gang-related crime, and thus, was familiar with the tell-tale signs of gun possession. People v. Benjamin, 51 N.Y.2d 267 (1980)(“it is quite apparent to an experienced police officer . . . that a handgun in often carried in the waistband”); see People v. Abdul-Malik, 298 A.D.2d 595 (2d Dept. 2002); see also Matter of Antonio A., 249 A.D.2d 202 (1 Dept. 1998)st (waistband adjustment is commonly known as a sign of the presence of a weapon). Thus, the detective’s observations of defendant were certainly sufficient to justify approaching him in order to make an inquiry pursuant to level two of the DeBour analysis. Indeed, Detective Lunt’s observation of defendant’s repeated adjustments to the right side of his waistband, in an area known to Detective Lunt for its high incidence of illegal gang activity, were consistent with gun possession, and thus, provided the detective with a sufficient factual predicate to permit him to approach defendant in a non-coercive fashion in order to make inquiry of him. See 27 People v. DeBour, 40 N.Y.2d at 220 (police officer legitimately approached defendant after defendant conspicuously crossed the street to avoid walking past uniformed officers after midnight in area known for drug activity); People v. Reyes, 83 N.Y.2d 945 (1994); see People v. Riddick, 70 A.D.3d 1421, 1422 (4 Dept. 2010)(police hadth objective, credible reason to approach defendant to request information in light of late hour, absence of other pedestrian traffic, and location of high-crime area); People v. Balanco, 158 A.D.2d 367 (1 Dept. 1990).st Further, under these circumstances, defendant’s immediate flight – after the detective identified himself – gave the officer reasonable suspicion that defendant was committing a crime. Indeed, a defendant’s flight in response to the police officer’s approach combined with other specific circumstances can give rise to reasonable suspicion to pursue. People v. Sierra, 83 N.Y.2d 928 (1994); People v. Stephens, 47 A.D.3d 586 (1 Dept. 2008)(reasonable suspicion found wherest defendant, clutching right side as if holding firearm, fled police after initial encounter); People v. Shervington, 25 A.D.3d at 628-629 (defendant’s flight and the surrounding circumstances provided officers with reasonable suspicion justifying their pursuit based upon that reasonable suspicion); People v. Salva, 228 A.D.2d 344 (1st Dept. 1996). And, here, the facts that the officer observed defendant constantly adjusting his waistband in an area known for illegal gang activity, coupled with 28 defendant’s immediate flight when he saw the police, reasonably elevated the police’s suspicion that defendant had a gun. The totality of the circumstances presented here constituted at least enough information to establish reasonable suspicion to detain defendant. Thus, their pursuit was entirely lawful. See Shervington, 25 A.D.3d at 629. Here, defendant was observed adjusting his waistband, in a manner indicative of having a gun, in an area known for gang activity. Thus, the officer was entitled to approach defendant and, then, pursue defendant as he fled based upon reasonable suspicion. People v. Feliz, 45 A.D.3d 437 (1 Dept. 2007); People v. Wynn, 25 A.D.3d 576 (2d Dept. 2006).st Finally, once Detective Lunt observed defendant tossing a gun during the pursuit, he could properly arrested defendant based upon probable cause. People v. Leung, 68 N.Y.2d 734 (1986); see People v. Velasquez, 217 A.D.2d 510 (1 Dept.st 1995). Indeed, this Court has found reasonable suspicion upon facts strikingly similar to the case at bar. In People v. Pines, 99 N.Y.2d 525 (2002), three plainclothes police officers, assigned to patrol a drug-prone area, observed the defendant and another individual walking and looking around “nervously.” Suspecting that a drug transaction may take place, the officers followed the men in their vehicle. When defendant saw the police car, his eyes “bulged out,” and he continued to walk with his companion. As the police vehicle came closer, the 29 defendant “placed his right arm against the side of his bubble jacket bunching it up by reaching underneath with his hand in a cupping motion.” Id. at 526. The officer testified at the hearing that the defendant’s behavior reminded him of how he himself would sometimes adjust his gun under a jacket. When the police approached further, the defendant clutched his jacket and walked in the opposite directions. Then, as the officers exited the vehicle and approached him, the defendant ran on foot and then threw a firearm into a garbage can as he fled. Id. at 526. The Appellate Division held that the officers’ initial observations gave rise to a “founded suspicion” that the defendant may have been engaged in criminal activity, thus creating a common-law right of inquiry under DeBour. The Appellate Division concluded that the “defendant’s flight upon the approach of the officers, and the additional suspicion engendered by it, then gave rise to a reasonable suspicion of criminal conduct, justifying pursuit.” Id. at 526. In affirming the Appellate Division’s decision, this Court held that a “defendant’s flight may be considered in conjunction with other attendant circumstances in determining whether reasonable suspicion justifying a seizure exists.” Id. at 527. Thus, as in Pines, the officer’s conduct here was proper because, based on the totality of the circumstances, the officer possessed sufficient reasonable suspicion to detain defendant. In short, even though counsel did not specifically point to the hearing court’s factual error in its decision, the argument defendant now advances was not so 30 certain or clear-cut as to render counsel’s error “egregious and prejudicial.” Indeed, there was ample ground in the record for denying defendant’s motion to suppress, as the hearing court did, even absent pointing out the factual error. Accordingly, counsel’s single error in this regard was not sufficient, by itself, to rise to the level of ineffective assistance of counsel. 31 CONCLUSION In sum, the Appellate Division, Second Department correctly held that defense counsel provided defendant with meaningful representation at the suppression hearing. Thus, this Court should reject defendant’s ineffective assistance of counsel claim. Accordingly, the order of the Appellate Division affirming defendant’s judgment of conviction should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ___________________________ Suzanne H. Sullivan Assistant District Attorney JOHN M. CASTELLANO SUZANNE H. SULLIVAN Assistant District Attorneys of Counsel February 7, 2013 32