The People, Respondent,v.Jocelyn Clermont, Appellant.BriefN.Y.September 11, 2013 To be argued by ALLEGRA GLASHAUSSER (15 minutes) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Respondent, - against – JOCELYN CLERMONT, Defendant- Appellant. REPLY BRIEF FOR DEFENDANT- APPELLANT LYNN W. L. FAHEY ALLEGRA GLASHAUSSER Attorneys for Defendant-Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 February 2013 i INDEX TABLE OF AUTHORITIES ................................................................................... ii PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT APPELLANT’S COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED AT ANY POINT TO ARGUE THE DISPOSITIVE ISSUE THAT THE POLICE LACKED REASONABLE SUSPICION TO CHASE APPELLANT BASED SOLELY ON HIS PRESENCE IN A GANG AREA AND HIS WAISTBAND ADJUSTMENT ................................................................................... 1 A. There Was No Reasonable Suspicion to Chase Appellant Because There Was No Testimony that His Waistband Adjustment was Indicative of a Gun, Nor Was There Any Other Indication of a Crime ....................................... 2 B. Counsel was Ineffective Because He Never Alerted the Court to the Dispositive Issue of Reasonable Suspicion ................................................................................................ 5 CONCLUSION .......................................................................................................... 9 ii CASES Antonio A., 249 A.D.2d 202 (1st Dep’t 1998) ................................................................... 3 Bell v. Cone, 535 U.S. 685 (2002) ............................................................................................ 7 Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................................. 4 People v. Abdul-Malik, 298 A.D.2d 595 (2d Dep’t 2002) ..................................................... 3 People v. Aiken, 45 N.Y.2d 394 (1978)................................................................................... 7 People v. Baldi, 54 N.Y.2d 137 (1980) .................................................................................... 6 People v. Benjamin, 51 N.Y.2d 267 (1980) .............................................................................. 3 People v. Berrios, 28 N.Y.2d 361 (1971) .................................................................................. 7 People v. Borrell, 12 N.Y.3d 365 (2009) .................................................................................. 4 People v. Brown, 175 A.D.2d 210 (2d Dep’t 1991) ................................................................ 7 People v. Di Stefano, 38 N.Y.2d 640 (1976) ............................................................................ 7 People v. Feliz, 45 A.D.3d 437 (1st Dep’t 2007) ................................................................... 3 People v. Gifford, 285 A.D.2d 669 (3d Dep’t 2001) ............................................................... 7 People v. Holmes, 81 N.Y.2d 1056 (1993) ............................................................................... 4 People v. Pines, 99 N.Y.2d 525 (2002) ..................................................................................... 2 People v. Rivera, 71 N.Y.2d 705 (1988) ................................................................................... 7 People v. Roberts, 63 A.D.3d 1294 (3d Dep’t 2009) ............................................................... 6 People v. Salva, 228 A.D.2d 344 (1st Dep’t 1996) ................................................................. 4 People v. Selby, 220 A.D.2d 544 (2d Dep’t 1995) .................................................................. 4 People v. Sergeant, 281 A.D.2d 438 (2d Dep’t 2001) ............................................................. 3 iii People v. Shervington, 25 A.D.3d 628 (2d Dep’t 2006) ........................................................... 4 People v. Stephens, 47 A.D.3d 586 (1st Dep’t 2008) .............................................................. 3 People v. Turner, 5 N.Y.3d 476 (2005) .................................................................................... 5 People v. Wynn, 25 A.D.3d 576 (2d Dep’t 2006) ................................................................... 4 PRELIMINARY STATEMENT This brief is submitted in reply to the Brief for Respondent, received on February 8, 2013. ARGUMENT APPELLANT’S COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED AT ANY POINT TO ARGUE THE DISPOSITIVE ISSUE THAT THE POLICE LACKED REASONABLE SUSPICION TO CHASE APPELLANT BASED SOLELY ON HIS PRESENCE IN A GANG AREA AND HIS WAISTBAND ADJUSTMENT. Appellant argued that defense counsel was ineffective for his failure to raise at any point that the police did not have reasonable suspicion to chase appellant – not in his motion papers, which were inaccurate, not during the suppression hearing, at which he made no arguments, nor after the court made a crucial factual error in its decision. In response, the People assert there was an “ample basis” to find the police had reasonable suspicion, that counsel’s “overall representation” was effective, and that his omissions were not prejudicial (People’s Brief 9, 14-15, 18, 24). Regardless of counsel’s errors, the People maintain there was reasonable suspicion, inter alia, because appellant’s waistband adjustment was indicative of a weapon (People’s Brief 2, 9, 27, 29). That claim is completely unsupported by the suppression record and the People cite no cases in which a waistband adjustment in a gang neighborhood, the only facts that are on the record, provided the requisite reasonable suspicion for police pursuit. Consequently, had counsel raised this argument, suppression would have been 2 granted, and, because appellant was charged only with weapon possession, the indictment dismissed. Counsel’s failure to do was, therefore, ineffective. A. There Was No Reasonable Suspicion to Chase Appellant Because There Was No Testimony that His Waistband Adjustment was Indicative of a Gun, Nor Was There Any Other Indication of a Crime Despite the People’s repeated declarations that appellant’s waistband adjustment was “in a manner indicative of possessing a weapon” (People’s Brief 2, 29), Detective John Lunt, the sole suppression witness, never so testified. He did not say that he believed the adjustment was a “tell-tale indication of the possession of a weapon” (People’s Response 9), claim that “based upon [his] training and experience” the adjustment “was indicative of weapon possession,” or that it was “consistent with gun possession” (People’s Brief 27). Contrary to the People’s declaration, he did not testify that because he had “been a police officer for ten years, six of which he was specifically assigned to investigate gang-related crime” he was “familiar with the tell- tale signs of gun possession” and that appellant’s adjustments were such a sign (People’s Brief 27). Lunt simply did not testify that he had any reason to believe appellant’s waistband adjustments were indicative of a gun or that he had any suspicion, “elevated” or otherwise, that appellant had a gun (People’s Brief 29). Sheer dint of repetition does not make it so. The People’s attempt to inject this new fact into the evidence is understandable. In People v. Pines, 99 N.Y.2d 525 (2002), heavily relied on by the People, the defendant made a “cupping motion” that “remind[ed]” the officer of how 3 he “would sometimes adjust a gun”; missing here was any testimony that the officers had reason to believe appellant was adjusting a gun, rather than a cell phone or a belt (People’s Brief 10, 15, 24, 29-30). Lunt did not see appellant clutching his side as if holding a gun, see People v. Stephens, 47 A.D.3d 586 (1st Dep’t 2008), or adjusting “what appeared to be a large hard object at his waistband, suggestive of a firearm.” See People v. Feliz, 45 A.D.3d 437 (1st Dep’t 2007) (People’s Brief 28-29). A mere waistband adjustment, without the officer noticing an outline of a gun or a bulge that looked like a gun, is simply not enough (See Appellant’s Brief 14-15). Therefore, even if Lunt had testified that he had a hunch or speculated that the waistband adjustment might have indicated a gun that would not have been sufficient. The other cases cited by the People also fail to demonstrate that appellant’s presence in a gang neighborhood and a waistband adjustment gave the police reasonable suspicion to pursue him. There was no report of a crime in the vicinity. Cf. People v. Benjamin, 51 N.Y.2d 267, 269 (1980) (waistband adjustment coupled with “radio run advising [officer] that there were men with guns at a specified street location”); People v. Abdul-Malik, 298 A.D.2d 595 (2d Dep’t 2002) (appellant matched description from 911 call, adjusted waistband, and disobeyed police instructions); People v. Sergeant, 281 A.D.2d 438 (2d Dep’t 2001) (appellant’s resemblance to robbery suspect coupled with flight); Matter of Antonio A., 249 A.D.2d 202 (1st Dep’t 1998) (appellant matched radio description of potential perpetrator of gang-related shooting, walked away, and adjusted waistband) (People’s Brief 26-29). Nor did the police 4 observe any crime in progress. Cf. People v. Wynn, 25 A.D.3d 576, 577 (2d Dep’t 2006) (police believed they saw appellant conduct drug transaction); People v. Salva, 228 A.D.2d 344 (1st Dep’t 1996) (seconds after gunshot, appellant, who was alone, ran at sight of patrol car); People v. Selby, 220 A.D.2d 544, 544-45 (2d Dep’t 1995) (appellant was the only person near burglary site when he ran) (People’s Brief 26- 29).1 Notably, the People cite no cases in which this Court or the Appellate Division found reasonable suspicion to chase based only on presence in a gang neighborhood and a waistband adjustment (People’s Brief 26-29).2 Contrary to the People’s assertion that this Court would need to “draw[ ] inferences from the facts” and conduct a “factual assessment of the evidence” to determine the legality of the police conduct, here there were no unresolved factual questions or facts that were in dispute (People’s Brief 9, 15, 23-24). Instead, whether there was reasonable suspicion to chase appellant simply because he adjusted his pants in a particular neighborhood was a “clear-cut legal determination,” which should have been perfectly evident to defense counsel (People’s Brief 9, 15, 23-24). Cf. People v. Borrell, 12 N.Y.3d 365, 369 (2009) (counsel 1 The People also rely upon People v. Shervington, 25 A.D.3d 628 (2d Dep’t 2006), but its relevance cannot be evaluated because the “surrounding circumstances” that combined with flight to provide reasonable suspicion were not elucidated in the decision (People’s Brief 26, 28, 29). 2 The People’s citation to Illinois v. Wardlow, 528 U.S. 119 (2000), should not be considered here because unlike under federal law, under the New York State Constitution, individuals have a “right to be let alone and refuse to respond to police inquiry.” People v. Holmes, 81 N.Y.2d 1056, 1058 2 The People’s citation to Illinois v. Wardlow, 528 U.S. 119 (2000), should not be considered here because unlike under federal law, under the New York State Constitution, individuals have a “right to be let alone and refuse to respond to police inquiry.” People v. Holmes, 81 N.Y.2d 1056, 1058 (1993) (People’s Brief 26). 5 not ineffective because, inter alia, unraised claim depended on an analysis of “a complex, continuous transaction and the overlapping elements of the nine counts”). B. Counsel was Ineffective Because He Never Alerted the Court to the Dispositive Issue of Reasonable Suspicion The People’s tactic to parse counsel’s errors, dismissing each individually, overlooks appellant’s argument that the totality of the circumstances shows defense counsel was unprepared – ignorant of the facts and the law – and that he failed to advocate effectively at any point. The People acknowledge that counsel erred in failing to correct the hearing court’s decision, which missed the issue of reasonable suspicion entirely by confusing the undisputed factual chronology, but they erroneously frame this as counsel’s only error, arguing that it alone was insufficient to constitute ineffective assistance (People’s Brief 8, 23-24). Counsel was ineffective not for this single error, but for his failure to argue at any time that the police lacked reasonable suspicion to chase appellant, instead asserting inaccurate facts in his motion, making no argument at the hearing, and letting the court’s error go uncorrected. Had counsel been prepared, he would have argued the police lacked reasonable suspicion, the weapon would have been suppressed, and the indictment against appellant would have been dismissed. Counsel’s errors, therefore, were “completely dispositive.” See People v. Turner, 5 N.Y.3d 476, 481 (2005). The failure to raise a winning suppression issue cannot be excused because counsel submitted an omnibus motion, agreed to go forward with the hearing despite 6 being overwhelmed with work, and briefly cross-examined Lunt (People’s Response 14-15, 18-19, 21). Counsel’s ineffectiveness began with his omnibus motion, which was inaccurate, not simply “inadequate” (People’s Brief 14). The motion included facts completely unrelated to appellant’s case on this issue as well as another.3 And, counsel’s assertion that he was ready for the hearing cannot be taken at face value when his failure to raise an apparent and dispositive legal argument showed he was not (People’s Brief 21). Nor can a brief cross-examination possibly excuse counsel’s failure to make a winning argument. Viewing his performance in its totality, counsel completely failed to provide effective representation. The Court should reject the People’s attempt to justify each of counsel’s mistakes separately. The omnibus motion error, arguing that the police had no probable cause to “forcibly remove” appellant from a car, when appellant was in fact stopped on the street, was not “inconsequential” (A. 12; People’s Brief 14, 19). Although the court granted a hearing, counsel did not use that opportunity to fix his error by presenting a relevant legal argument. Unlike the cases cited by the People, the error here remained uncorrected (People’s Brief 19-20). Cf. People v. Baldi, 54 N.Y.2d 137, 149-50 (1980) (counsel’s error in eliciting statements was not prejudicial because the statements were suppressed); People v. Roberts, 63 A.D.3d 1294 (3d Dep’t 2009) (no 3 Counsel requested to suppress statements based on “a warrantless arrest of the defendant near his van, and without adequately advising him of his Miranda rights prior to questions” (A. 13). The heading of the omnibus motion also bore the name of a different defendant, “Jonathan Johnson,” although appellant’s correct name was used in the body (A. 10). 7 prejudice because “prior conviction was fully established at trial” by evidence unrelated to counsel’s allegedly deficient performance); People v. Gifford, 285 A.D.2d 669 (3d Dep’t 2001) (no prejudice because defendant “ultimately received a shorter sentence than the one which induced him to plead guilty” through counsel’s ineffective performance). Nor was there any possible strategic reason for defense counsel to remain silent after the hearing when a dispositive legal argument was available. Cf. People v. Rivera, 71 N.Y.2d 705 (1988) (failure to request a pretrial motion is “generally” not ineffective because of many possible strategic reasons). Because at a Mapp hearing, the defense “shoulder[ed] the burden of persuasion,” People v. Di Stefano, 38 N.Y.2d 640, 652 (1976); People v. Berrios, 28 N.Y.2d 361, 367 (1971), the cases cited by the People relating to strategic trial decisions are not applicable here. Cf. Bell v. Cone, 535 U.S. 685, 687 (2002) (“tactical decision” to waive summation argument); People v. Aiken, 45 N.Y.2d 394, 400 (1978) (noting that counsel may have strategic reason for waiving opening and closing arguments at trial, such as having nothing “affirmative nature to offer the jury”); People v. Brown, 175 A.D.2d 210 (2d Dep’t 1991) (stipulation could have strategic reasons) (People’s Brief 22). The People further suggest that this Court overlook counsel’s failure to make a winning and dispositive legal argument because the “set of facts” was not “particularly complicated,” the hearing was “exceedingly brief,” and it was “apparent to all that the issue before the hearing court was the legality of the police conduct” (People’s Brief 8 22). But, the legality of police conduct is the issue at every Mapp hearing and it was defense counsel’s constitutional obligation to pinpoint the specific illegality in appellant’s case. Because it was not the People’s burden, the trial prosecutor’s choice not to argue cannot excuse defense counsel’s silence (People’s Brief 15, 22). None of the People’s individual explanations justify counsel’s complete failure to advocate on appellant’s behalf. Counsel missed three opportunities to raise a winning suppression issue, first presenting erroneous facts, then making no argument, and lastly failing to correct the court’s mistake. Counsel’s performance in failing to raise a dispositive issue was deficient and, because these errors were never remedied, it prejudiced appellant. This Court should, therefore, find counsel ineffective, reverse appellant’s conviction, grant suppression, and dismiss the indictment. 9 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPELLANT’S MAIN BRIEF, APPELLANT’S CONVICTION SHOULD BE REVERSED, THE MOTION TO SUPPRESS GRANTED, AND THE INDICTMENT DISMISSED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 ________________________ By: Allegra Glashausser Of Counsel Dated: February 21, 2013 New York, New York