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. 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 November 15, 2012 i INDEX TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT .............................................................................. 1 QUESTION PRESENTED ..................................................................................... 2 SUMMARY OF ARGUMENT ................................................................................ 2 STATEMENT OF FACTS ....................................................................................... 3 Introduction ...................................................................................................... 3 Suppression Motion ......................................................................................... 4 Defense Counsel’s Motion to Be Relieved ................................................... 5 Mapp Hearing .................................................................................................... 6 Trial .................................................................................................................... 7 Verdict and Sentence ....................................................................................... 7 Appeal ................................................................................................................ 8 ARGUMENT APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY, WHO ADMITTED HE WAS “OVERWHELMED” AND WITHOUT SUFFICIENT RESOURCES TO “COMPETENTLY REPRESENT” HIS CLIENTS, AND REQUESTED TO BE RELIEVED, FAILED TO ARGUE THAT THE POLICE LACKED REASONABLE SUSPICION TO CHASE APPELLANT BASED ON A WAISTBAND ADJUSTMENT IN A “KNOWN” GANG NEIGHBORHOOD ............................................................... 10 ii A. Right to Effective Assistance of Counsel ....................... 11 B. Reasonable Suspicion Standard for Police Pursuit ....... 13 C. The Absence of Reasonable Suspicion to Chase Appellant ............................................................................. 17 D. Counsel’s Ineffectiveness For Failing to Raise a Winning Suppression Argument ...................................................... 20 CONCLUSION ........................................................................................................ 23 iii TABLE OF AUTHORITIES CASES Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) .......................................................................... 11 In re Dante B., 58 A.D.3d 577 (1st Dep’t 2009) ................................................................ 15 In re George G., 73 A.D.3d 624 (1st Dep’t 2010) ............................................................... 15 Kimmelman v. Morrison, 477 U.S. 365 (1986) ................................................................ 12, 13 People v. Archie, 136 A.D.2d 553, 554 (2d Dep’t 1988) .................................................... 20 People v. Baldi, 54 N.Y.2d 137 (1981) .............................................................................. 3, 11 People v. Benevento, 91 N.Y. 2d 708 (1998) .......................................................................... 11 People v. Benjamin, 51 N.Y.2d 267 (1980) ........................................................................... 14 People v. Bennett, 29 N.Y.2d 462 (1972) .................................................................... 2, 12, 20 People v. Boodle, 47 N.Y.2d 398, 403-04 (1979) ............................................................ 19, 20 People v. Brown, 28 A.D.3d 201 (1st Dep’t 2006) .............................................................. 19 People v. Cadle, 71 A.D.3d 689 (2d Dep’t 2010) ................................................................ 15 People v. Cantor, 36 N.Y.2d 106 (1975) ............................................................................... 14 People v. Carmichael, 92 A.D.3d 687 (2d Dep’t 2012) ......................................................... 18 People v. Crisler, 81 A.D.3d 1308 (4th Dep’t 2011) ........................................................... 15 People v. Cornelius, 113 A.D.2d 666 (1st Dep’t 1986) ........................................................ 16 People v. Cyrus, 48 A.D.3d 150 (1st Dep’t 2007) ............................................................... 13 People v. De Bour, 40 N.Y.2d 210 (1976) ............................................................................ 14 People v. Donovan, 184 A.D.2d 654 (2d Dep’t 1992) ......................................................... 22 iv People v. Droz, 39 N.Y.2d 457 (1976) ............................................................................. 2, 12 People v. Ellsworth, 131 A.D. 2d 109 (3d Dep’t 1987) ....................................................... 13 People v. Esquilin, 236 A.D.2d 245 (1st Dep’t 1997) aff’d 91 N.Y.2d 902 (1998) .......... 16 People v. Farrell, 90 A.D.2d 396 (1st Dep’t 1982) ........................................................ 14, 18 People v. Grant, 164 A.D.2d 170 (1st Dep’t 1990) ............................................................. 19 People v. Henderson, 85 A.D.3d 663 (1st Dep’t 2011) ........................................................ 15 People v. Holmes, 81 N.Y.2d 1056 (1993) ............................................................2, 13, 15, 18 People v. Howard, 50 N.Y.2d 583 (1980) ....................................................................... 15, 20 People v. Johnson, 37 A.D.3d 363 (1st Dep’t 2007) ............................................................ 13 People v. Lombardi, 18 A.D.2d 177 (2d Dep’t 1963), aff’d 13 N.Y.2d 1014 (1963) ... 13, 22 People v. Martinez, 80 N.Y.2d 444 (1992) ................................................................ 14, 16, 18 People v. Matienzo, 81 N.Y.2d 778 (1993) ........................................................................... 16 People v. McIntosh, 96 N.Y.2d 521 (2001) ..................................................................... 16, 18 People v. McRay, 51 N.Y.2d 594 (1980) .............................................................................. 17 People v. Moore, 176 A.D.2d 297 (2d Dep’t 1991) ............................................................. 19 People v. Pines, 99 N.Y.2d 525 (2002) ................................................................................. 14 People v. Powell, 246 A.D.2d 366 (1st Dep’t 1998) ............................................................ 18 People v. Ramierez-Portoreal, 88 N.Y.2d 99 (1996) ......................................................... 19, 20 People v. Riddick, 70 A.D.3d 1421 (4th Dep’t 2010) ............................................. 14, 17, 19 People v. Rivera, 71 N.Y.2d 705 (1988) ................................................................................ 11 People v. Robbins, 83 N.Y.2d 928 (1994) ................................................................. 14, 17, 19 v People v. Rodriguez, 98 N.Y.2d 93 (2002) ............................................................................ 20 People v. Sierra, 83 N.Y.2d 928 (1994) .......................................................................... 16, 18 People v. Stevenson, 7 A.D.3d 820 (2d Dep’t 2004) ........................................................ 14, 17 People v. Torres, 115 A.D.2d 93, 99 (1st Dep’t 1986) .................................................. 19, 20 People v. Turner, 5 N.Y.3d 476 (2005) ......................................................................... 2, 3, 12 People v. Vega, 276 A.D.2d 414 (1st Dep’t 2000) .............................................................. 13 People v. Wilkerson, 64 N.Y.2d 749 (1984) .......................................................................... 20 People v. Woods, 98 N.Y.2d 627 (2002) ............................................................................... 16 Strickland v. Washington, 466 U.S. 668 (1984) ........................................................... 3, 11, 12 Williams v. Taylor, 529 U.S. 362 (2000) .............................................................................. 12 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. VI ................................................................................................... 3, 11 U.S. Const. Amend. XIV ................................................................................................. 3, 11 N.Y. Const., Art. I, § 6 ..................................................................................................... 3, 11 N.Y. Const., Art. I, § 12 ................................................................................................... 2, 10 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOCELYN CLERMONT, Defendant-Appellant. -------------------------------------------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Robert J. Miller, Associate Justice of the Appellate Division, Second Department, granted September 13, 2012, appellant Jocelyn Clermont appeals from an order of the Appellate Division, Second Department, entered May 30, 2012, affirming a judgment of the Supreme Court, Queens County, rendered on June 2, 2008, convicting him, after a jury trial, of second-degree criminal possession of a weapon and two counts of third-degree criminal possession of a weapon, and sentencing him to concurrent prison terms aggregating eight years’ and three years’ post-release supervision. On October 18, 2012, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Appellant is presently incarcerated pursuant to the judgment appealed herein. No stay has been sought. 2 This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review the issue raised, that defense counsel was ineffective, which need not be preserved in order to present a question of law. QUESTION PRESENTED Was appellant denied the effective assistance of counsel when his attorney, who admitted he was “overwhelmed” and without sufficient resources to “competently represent” his clients, and requested to be relieved, failed to argue that the police lacked reasonable suspicion to chase appellant based on a waistband adjustment in a “known” gang neighborhood? SUMMARY OF ARGUMENT A defendant’s Sixth Amendment right to the effective assistance of counsel entitles him to counsel who has familiarized himself with the applicable law and facts. People v. Droz, 39 N.Y.2d 457, 462 (1976); People v. Bennett, 29 N.Y.2d 462, 466 (1972). Defense counsel is ineffective when he fails to advance a winning argument that would result in dismissal of the indictment. People v. Turner, 5 N.Y.3d 476 (2005). Accordingly, when the dispositive issue is whether a gun, that is the only basis for the charges in the indictment, should be suppressed as a result of illegal police conduct, counsel must be familiar with the well-established rule that police need reasonable suspicion that a crime has been committed, or is about to be committed, to chase an individual, and that any evidence seized without such suspicion should be suppressed. See People v. Holmes, 81 N.Y.2d 1056, 1057-58 (1993); N.Y. Const., Art. I, § 12. 3 Here, counsel initially filed a suppression motion alleging facts addressed to a different case and distinct legal issues. He then moved to be relieved three days before the Mapp hearing and again immediately before it started, saying he we “overwhelmed” with work and unable to “competently represent” all his clients. At the conclusion of the hearing, he failed to raise any arguments for suppression, even though the police lacked reasonable suspicion to chase appellant based merely on his waistband adjustments in a “known” gang neighborhood. Counsel also failed to alert the hearing court that it based its decision denying suppression on a critical factual error, that appellant discarded a gun before rather than after the police chased him. By failing to raise an issue that would have made the difference between conviction and dismissal of all the charges, defense counsel denied appellant his Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Turner, 5 N.Y.3d 476; People v. Baldi, 54 N.Y.2d 137 (1981); U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §6. STATEMENT OF FACTS Introduction On October 15, 2006, Detective John Lunt arrested appellant Jocelyn Clermont, who was indicted for second- and third- degree weapon possession. At a Mapp hearing, Lunt testified that, in a residential area of Queens known for gang activity, he saw appellant adjusting his waistband while walking. When Lunt and his 4 partner emerged from their car, appellant ran away and Lunt pursued. Appellant discarded a gun during the chase. Defense counsel, who twice asked to be relieved because he was overworked and unable to “competently represent” all his clients, had mistakenly argued in his written motion to suppress the gun that police stopped appellant in a car without probable cause. At the conclusion of the hearing, counsel did not correct his earlier error or make any additional arguments in favor of suppressing the gun. Confusing the chronology of the events leading to the recovery of the gun, the court denied suppression, ruling that Lunt was justified in chasing appellant after appellant discarded a gun. Counsel did not correct the court’s factual error. Counsel was relieved from the case after the suppression hearing, and a jury convicted appellant of three counts of weapon possession. Suppression Motion In his motion to suppress the gun dated May 8, 2007, defense counsel argued that the police approached appellant “wholly without probable cause [or] consent” while he was “seated in an automobile,” and that when they “forcibly removed” him, a “gun fell out of the car” (A. 12).1 Counsel noted that he was “unaware of many of the relevant facts necessary to [his] preparation of the defense” and requested that he be allowed to “submit a memorandum of law” after any hearings so he “might more 1 Citations preceded by “A” refer to the pages of the appendix. 5 effectively represent [appellant’s] interests” (A. 22). The People responded that appellant abandoned the gun by throwing it into a yard “during a pursuit,” and that defense counsel’s motion failed to sufficiently show that appellant had standing to challenge the seizure of the gun (A. 29). The court ordered a Mapp hearing (A. 31-33). Defense Counsel’s Motion to Be Relieved In a written motion filed September 2, 2007, three days before the Mapp hearing, defense counsel requested that he be relieved because his associate had “resigned unexpectedly,” leaving him an “overwhelming amount of work” without “sufficient time and/or resources to competently represent” all his clients (A. 35-37). Counsel renewed this motion immediately preceding the Mapp hearing, telling the court that immigration cases comprised 80% of his work and he was required to be in court four or five times a week for immigration hearings, which would “interrupt the flow” of appellant’s case (A. 42). Moreover, counsel was supposed to start a different criminal trial that same day (A. 42). Nonetheless, the court asked counsel if he could proceed with the hearing and “get the case to a trial posture,” before confirming that the police witness was on his way to court (A. 43). Counsel responded that he could “do the hearing and then . . . do [his] motion” (A. 43). The court said it would not “force” him to do so if the other trial went forward that day (A. 43). After a recess for counsel to check the status of the other trial, he said he was ready to proceed (A. 43-44). 6 Mapp Hearing At 9:15 p.m. on October 15, 2006, during a routine patrol of a “known” gang neighborhood in Queens, Detective John Lunt saw appellant and another man walking down 164th Street (A. 46-47, 50). Appellant was “making constant adjustments to his right waistband area” (A. 47-49). Lunt stopped the unmarked police car 10 to 15 yards away from the two men, got out, and, with his shield around his neck, identified himself as a detective (A. 47-49). Appellant turned around and ran, while holding his right side and making “adjustments” with his right hand (A. 47, 53). Lunt chased him up a driveway and through backyards before appellant removed a gun from the right side of his waistband, threw it on the ground, and jumped over a fence into the next yard (A. 48- 49). After jumping over the fence himself, Lunt arrested appellant and retrieved the gun (A. 48-49, 53). After a brief cross-examination, eliciting, inter alia, the color of the gun and the sufficiency of the lighting, defense counsel rested and said that he would “rely on the record,” as did the prosecution (A. 50-53). The court then relieved defense counsel, but asked him to appear at the next court date on September 27 to transfer the case (A. 53-54). In a written decision on September 26, 2007, the court found that Lunt pursued appellant after he made “constant adjustments to his right waistband area” 7 and that appellant discarded a gun during a chase (A. 39-40). The court ruled that Lunt’s initial approach of appellant was “reasonable,” based on appellant continuously adjusting his waistband in a known gang location (A. 39-40). Confusing the factual chronology in its conclusions of law, the court further ruled that, “[o]nce the Detective observed [appellant] throw the gun on the ground he was justified in chasing [appellant] and subsequently arresting him and recovering the gun” (A. 40). Counsel failed to correct the court’s error or move to reargue. Trial Lunt’s trial testimony was substantially the same as his hearing testimony (A. 58-77). Lunt’s partner, Officer Michael Duffy, testified that he also saw appellant adjusting his waistband (A. 56-57). The gun Lunt recovered was a loaded, operable nine millimeter semi-automatic, which was introduced into evidence (Lunt: A. 76-77; Det. Chris Painton, ballistics expert: A. 78-89). Verdict and Sentence The jury convicted appellant of second-degree weapon possession and two counts of third-degree weapon possession. A charge of resisting arrest was dismissed because the jury could not reach a verdict. Appellant was sentenced to eight years’ imprisonment and three years’ post-release supervision on the top count and three years’ imprisonment and two years’ post-release supervision for each of the lesser counts. 8 Appeal On appeal, appellant argued, inter alia, that defense counsel was ineffective because he failed to raise a winning issue, that the police did not have reasonable suspicion to chase appellant based merely on his presence in a gang neighborhood and his waistband adjustment. The People responded that counsel effectively advocated for appellant by requesting a Mapp hearing and conducting cross-examination at the hearing and that there “was not much more that counsel could have done.” Moreover, the People contended, the police had reasonable suspicion to stop appellant based on the “high instances of gang-related crime” in the neighborhood, appellant’s waistband adjustment, and his flight. A three-judge majority of the Appellate Division, Second Department, upheld appellant’s conviction, ruling that “[n]otwithstanding 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 this case, viewed in totality, reveal that defense counsel provided meaningful representation.” People v. Clermont, 95 A.D.3d 1349, 1351 (2d Dep’t 2012) (A. 3). The court noted that defense counsel moved for a suppression hearing and that his cross-examination of the detective was “reasonably competent and thorough” (A. 3). The court did not address the merits of the suppression argument. 9 In dissent, Justice Robert J. Miller wrote that under “no standard” of “meaningful representation” was appellant “provided with the assistance required by either the Federal or State Constitutions” (A. 7). Noting what could “only be described as a mistake,” Justice Miller pointed out that the defense suppression motion “consisted of arguments addressed to a different case involving a separate set of facts and distinct legal issues,” and counsel “admitted that he was unable to adequately prepare” (A. 4, 7). During the hearing, he declined the opportunity to make a legal argument and, although counsel “acknowledged that submission of post- hearing arguments was necessary,” never presented any submissions to the court (A. 7). Finally, although the suppression court’s factual findings “deviated materially from the only version of the events related at the hearing” and were “unquestionably more prejudicial to the defendant than the actual hearing testimony,” counsel “never apprised” the court about “its apparent factual error and never asked [it] to reconsider its decision” (A. 7). Counsel, therefore, “abdicated” his duty to “advocate for [appellant’s] cause” and there was a “total failure to present the cause of the accused in any fundamental respect” (A. 7). His “overall failure to advocate on his client’s behalf before, during, and after the suppression hearing show[ed] the absence of meaningful adversarial representation” (A. 7). Justice Miller granted appellant leave on September 13, 2012 (A. 1). 10 ARGUMENT APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY, WHO ADMITTED HE WAS “OVERWHELMED” AND WITHOUT SUFFICIENT RESOURCES TO “COMPETENTLY REPRESENT” HIS CLIENTS, AND REQUESTED TO BE RELIEVED, FAILED TO ARGUE THAT THE POLICE LACKED REASONABLE SUSPICION TO CHASE APPELLANT BASED ON A WAISTBAND ADJUSTMENT IN A “KNOWN” GANG NEIGHBORHOOD. Police may not pursue a person without reasonable suspicion to believe that person has committed or is about to commit a crime. Here, Detective Lunt observed appellant only make “waistband adjustments” in a “known gang” neighborhood. Even combined with appellant’s flight, Lunt did not have reasonable suspicion to chase appellant. Consequently, Lunt violated appellant’s constitutional right to be free from unreasonable searches and seizures, and the gun he discarded as a result of Lunt’s unlawful pursuit should have been suppressed. N.Y. Const., Art. I, § 12. At the suppression hearing, however, appellant’s counsel, who asked to be relieved three days before the hearing and immediately prior to it because he had an “overwhelming” amount of work and neither the time nor resources to “competently represent” all his clients, failed to make this winning argument. Counsel also failed to correct the court, which missed the reasonable suspicion issue and based its decision on an inaccurate fact, finding that appellant discarded the gun before Lunt pursued 11 him. Counsel’s errors, in addition to his failure to allege the correct facts in his motion for a Mapp hearing, could not have been the result of a legitimate defense strategy, but, instead, deprived appellant of his Sixth Amendment right to the effective assistance of counsel. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §6; Strickland v. Washington, 466 U.S. 668 (1984); People v. Baldi, 54 N.Y.2d 137 (1981). Appellant’s conviction should, therefore, be reversed, the motion to suppress granted, and the indictment dismissed. A. Right to Effective Assistance of Counsel Under the federal constitution, defense counsel is ineffective when his performance falls below “an objective standard of reasonableness” and prejudices the defendant. Strickland, 466 U.S. at 688; Henry v. Poole, 409 F.3d 48 (2d Cir. 2005). Under the New York constitution, a defendant is denied effective assistance of counsel when the circumstances “viewed in totality” show that the attorney did not provide “meaningful representation.” People v. Benevento, 91 N.Y. 2d 708, 712 (1998); Baldi, 54 N.Y.2d 137. Defense counsel’s performance must be “objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney.” Benevento, 91 N.Y.2d at 712 (internal citations and quotation marks omitted). To meet this standard, the defense must “reflect[ ] a reasonable and legitimate strategy under the circumstances and evidence presented.” Id. at 713. See also People v. Rivera, 71 N.Y.2d 705, 708-10 (1988). 12 The Sixth Amendment right to counsel also requires an attorney “who has taken the time to . . . prepare” and is familiar with the existing law and facts “relevant to the defense.” People v. Droz, 39 N.Y.2d 457, 462 (1976). Accordingly, counsel must “conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow [ ] enough time for reflection and preparation for trial.” People v. Bennett, 29 N.Y.2d 462, 466 (1972) (citation omitted). See also Williams v. Taylor, 529 U.S. 362, 395 (2000) (decision based on an “incorrect[ ]” legal interpretation was not animated by “strategic calculation”); Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (decision based on “mistaken beliefs” not strategic or reasonable); Strickland, 466 U.S. at 688 (“Counsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process”). The most substantial error an attorney can commit is one that makes the difference between conviction and dismissal. In People v. Turner, this Court found counsel ineffective for failing to raise a statute of limitations defense that was “clear- cut and completely dispositive.” 5 N.Y.3d 476, 481 (2005). Because the omitted defense was so strong that “trial counsel could not reasonably have thought that the defense was not worth raising,” counsel’s failure to raise it could not be “reconcile[d] with . . . the constitutional right to the effective assistance of counsel.” Id. As with a statute of limitations defense, the grant or denial of suppression “may often spell the difference between conviction or acquittal, for the evidence seized may 13 constitute the principal, if not the only, means of establishing the defendant’s guilt.” People v. Lombardi, 18 A.D.2d 177, 180 (2d Dep’t 1963), aff’d 13 N.Y.2d 1014 (1963). Accordingly, counsel’s failure to move for a suppression hearing or raise winning suppression arguments can be ineffective. See Kimmelman, 477 U.S. 365 (counsel’s performance ineffective for failing to move for suppression, remanding to consider prejudice); People v. Cyrus, 48 A.D.3d 150, 160 (1st Dep’t 2007) (“The failure to . . . adequately pursue a viable suppression claim may constitute the ineffective assistance of counsel”); People v. Johnson, 37 A.D.3d 363 (1st Dep’t 2007) (counsel ineffective for conceding several colorable suppression arguments); People v. Vega, 276 A.D.2d 414 (1st Dep’t 2000) (representation inadequate because counsel failed to raise colorable suppression claims); People v. Ellsworth, 131 A.D.2d 109 (3d Dep’t 1987) (failure to seek suppression of only evidence connecting defendant to burglary, when suppression claim was strong, was ineffective). Here, defense counsel, who asked to be relieved because he was overworked and could not completely represent all of his clients, was ineffective for failing to argue that the police pursuit of appellant, who discarded a gun during the chase, was not premised on the requisite reasonable suspicion. B. Reasonable Suspicion Standard for Police Pursuit Police pursuit “must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed.” People v. Holmes, 81 N.Y.2d 1056, 1057-58 14 (1993); see People v. Martinez, 80 N.Y.2d 444, 447 (1992). 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,” Martinez, 80 N.Y.2d at 448 (internal quotations and citations omitted), and may not be based on “[v]ague or unparticularized hunches.” People v. Cantor, 36 N.Y.2d 106, 113 (1975). Reasonable suspicion cannot be founded on a citizen’s behavior that is “susceptible of innocent as well as culpable interpretation.” People v. De Bour, 40 N.Y.2d 210, 216 (1976). In numerous cases, this Court and others have held that waistband adjustments by pedestrians, without police observation of a bulge or other indication of a weapon, are insufficient to establish reasonable suspicion because they are susceptible to innocent interpretation. People v. Robbins, 83 N.Y.2d 928 (1994); People v. Benjamin, 51 N.Y.2d 267 (1980) (noting that “reaching to the rear of the waistband, with both hands . . . may be consistent with innocuous or innocent behavior”); People v. Riddick, 70 A.D.3d 1421, 1422-23 (4th Dep’t 2010); People v. Stevenson, 7 A.D.3d 820 (2d Dep’t 2004); People v. Farrell, 90 A.D.2d 396, 398-99 (1st Dep’t 1982). Reasonable suspicion may be established, however, if, in addition to an adjustment, the officer notices the outline of a gun or a bulge that looked like a gun. See, e.g., People v. Pines, 99 N.Y.2d 525 (2002) (defendant made a “cupping motion” under his jacket, which “remind[ed] the testifying officer of how he himself would sometimes adjust a gun”); De Bour, 40 N.Y.2d at 220-21 (bulge that officer “took” “to 15 be a gun”); People v. Henderson, 85 A.D.3d 663 (1st Dep’t 2011) (detailed description of waistband bulge whose “shape resembled the outline of a grip of a pistol” and defendant’s repeated motions, which the officers “recognized” were indicative of attempts to adjust a firearm); People v. Crisler, 81 A.D.3d 1308 (4th Dep’t 2011) (pocket bulge appeared “consistent with a hidden firearm”); In re George G., 73 A.D.3d 624 (1st Dep’t 2010) (waistband adjustment in a high crime area at night, coupled with a bulge “whose shape was consistent with the grip of a pistol”); In re Dante B., 58 A.D.3d 577 (1st Dep’t 2009) (proximity to a specific crime, bulge suggestive of a firearm, and a waistband adjustment provided reasonable suspicion). Just as a waistband adjustment may not establish reasonable suspicion unless supported by the officer’s observation of a bulge or other indication of a gun, an individual’s flight “alone[ ] or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit.” Holmes, 81 N.Y.2d at 1058 (internal quotation marks and citations omitted); People v. Cadle, 71 A.D.3d 689 (2d Dep’t 2010) (no reasonable suspicion when, in a high-crime area, defendant was holding his waistband at night and fled when police approached); People v. Howard, 50 N.Y.2d 583 (1980). An “individual has a right to be let alone and refuse to respond to police inquiry.” Holmes, 81 N.Y.2d at 1058. An individual’s flight “in response to an approach by the police” may only give rise to reasonable suspicion if “combined with other specific circumstances indicating that the 16 suspect may be engaged in criminal activity.” People v. Sierra, 83 N.Y.2d 928, 929 (1994) (emphasis added); Martinez, 80 N.Y.2d at 448 (reasonable suspicion to chase defendant when, police observed defendant late at night, in a high crime area, remove a “Hide-a-Key box,” known to be a hiding place for drugs). A report of a crime at a specific location combined with an individual’s flight, therefore, can establish reasonable suspicion. See, e.g., People v. Woods, 98 N.Y.2d 627 (2002) (reported robbery and flight); People v. Esquilin, 236 A.D.2d 245 (1st Dep’t 1997) (exact location of reported robbery, defendants ran after someone said “cops are here”), aff’d, 91 N.Y.2d 902 (1998); People v. Matienzo, 81 N.Y.2d 778 (1993) (officer who observed hand-to- hand in a high-crime area, radioed description to other officers, who pursued an individual matching the description of the suspect). But, an individual’s mere presence in a high-crime or gang neighborhood cannot provide reasonable suspicion. See People v. McIntosh, 96 N.Y.2d 521, 526-27 (2001) (that an encounter occurs in high crime vicinity is only one factor in determining reasonableness of police conduct); People v. Cornelius, 113 A.D.2d 666, 670 (1st Dep’t 1986) (“combining [ ] such otherwise innocuous actions and behavior in a . . . ‘high crime area’ does not expand the powers of the police to the detriment of those individuals who happen to live or work in, or are passing peaceably through, such a neighborhood”); see also People v. McRay, 51 N.Y.2d 594, 606-07 (1980) (Fuchsberg, J., concurring) (“Arrests are made of individuals, not of neighborhoods. 17 When we single out the latter . . . we subject all its residents . . . to an immeasurably greater risk of invasion than those who live elsewhere. The inevitable result is a measurable abridgement of the Fourth Amendment’s protection . . .”). C. The Absence of Reasonable Suspicion to Chase Appellant Here, Lunt lacked reasonable suspicion to pursue appellant based solely on his adjusting his waistband in a gang neighborhood and fleeing when the police approached. There was nothing unusual or suspicious about appellant walking down that street in a residential area at 9:15 p.m.. Lunt had no report of a man with a gun or any other crime. He had no report that there was gang fight or gang meeting. He had no report that appellant was in a gang. He had not even heard a rumor of a fight or any gang-related activity when he noticed appellant. Not only was Lunt not responding to any crime, but appellant’s actions were not indicative of any involvement in criminal activity. His adjustments to his waistband could have been him tugging too-big pants or fixing a cell-phone attached to his waistband, innocent conduct insufficient to establish reasonable suspicion that he was committing a crime. See Robbins, 83 N.Y.2d 928; Riddick, 70 A.D.3d at 1422-23 (“the fact that defendant reached for his waistband, absent any indication of a weapon such as the visible outline of a gun or the audible click of a magazine of a weapon does not establish the requisite reasonable suspicion”); Stevenson, 7 A.D.3d 820 (a waistband bulge and “several” adjustments in that area, without “indicat[ing] that the 18 bulge had the outline of a weapon,” are “readily susceptible of an innocent as well as a guilty explanation”); Farrell, 90 A.D.2d at 398-99 (“wearing an unbuttoned coat and tugging at a waistband can scarcely be regarded as signaling the presence of a concealed weapon”). Similarly, that appellant was in a “known” gang neighborhood did not indicate his involvement in a gang-related crime. See McIntosh, 96 N.Y.2d at 526-27; People v. Powell, 246 A.D.2d 366 (1st Dep’t 1998) (defendant adjusting his waistband in a high-crime area and walking away quickly with his arm stiff against his body were actions “at all times innocuous and readily susceptible of an innocent interpretation,” as no officer testified that “he observed the outline of a gun, a waistband bulge or any other telltale sign of a weapon”). Consequently, appellant’s flight did not elevate the level of Lunt’s observations to reasonable suspicion because there were no “other specific circumstances indicating that [appellant was] engaged in criminal activity.” Sierra, 83 N.Y.2d at 929; Martinez, 80 N.Y.2d at 448. The totality of the circumstances – the waistband adjustment, presence in a gang neighborhood at 9:15 in the evening, and flight – were insufficient to establish reasonable suspicion. See Robbins, 83 N.Y.2d 928 (no reasonable suspicion when defendant exited a cab stopped by police, grabbed at his waistband, and fled); Holmes, 81 N.Y.2d at 1058 (no reasonable suspicion to chase defendant in known narcotics location with a pocket bulge); People v. Carmichael, 92 A.D.3d 687 (2d Dep’t 2012) (defendant’s “right arm tens[ing] up towards his body 19 beneath his coat or at his coat line area around the vicinity of his waistband” in a “high crime area” were not “specific circumstances indicative of criminal activity,” so no reasonable suspicion to pursue fleeing defendant); Riddick, 70 A.D.3d 1421 (no reasonable suspicion for pursuit based on defendant reaching for waistband after midnight in high crime area); People v. Brown, 28 A.D.3d 201 (1st Dep’t 2006) (adjusting an object in waistband and attempting to evade police sufficient only for a common-law inquiry); People v. Moore, 176 A.D.2d 297, 299 (2d Dep’t 1991) (no reasonable suspicion to follow defendant in a high-crime area after observing a waistband bulge and adjustment). A weapon discarded as a “spontaneous provoked reaction” to an illegal police pursuit is considered a fruit of that illegal chase and must be suppressed. People v. Boodle, 47 N.Y.2d 398, 403-04 (1979); People v. Wilkerson, 64 N.Y.2d 749 (1984). Conversely, a weapon abandoned as an “independent act involving a calculated risk” would be sufficiently attenuated from the illegal pursuit and would not be suppressed. People v. Ramierez-Portoreal, 88 N.Y.2d 99 (1996); Wilkerson, 64 N.Y.2d 749; Boodle, 47 N.Y.2d 398. The People bear the burden of proving that an individual abandoned a gun independent from the illegal police conduct. Howard, 50 N.Y.2d at 593; People v. Grant, 164 A.D.2d 170 (1st Dep’t 1990) (courts should find abandonment “only in the clearest of cases); People v. Torres, 115 A.D.2d 93, 99 (1st Dep’t 1986) (same). 20 Here, because appellant discarded the gun as a “spontaneous” reaction to the illegal police chase and the People introduced no evidence to the contrary, the weapon should have been suppressed as a result of the unlawful police pursuit. See People v. Rodriguez, 98 N.Y.2d 93, 98-99 (2002) (defendant dropped gun out of car window during illegal police pursuit); Wilkerson, 64 N.Y.2d 749 (defendant reached for gun in waistband immediately after being told to stop); People v. Archie, 136 A.D.2d 553, 554 (2d Dep’t 1988) (drugs dropped during chase); Torres, 115 A.D.2d at 98-99 (defendant threw gun during chase). D. Counsel’s Ineffectiveness for Failing to Raise a Winning Suppression Argument Despite this convincing argument for suppression, counsel failed to advance any arguments in support of suppressing the gun. His inadequate performance indicated he was familiar with neither the law nor the facts. See Bennett, 29 N.Y.2d at 466 (attorney must be prepared on the law and the facts, not just be “a person with a law degree [who] nominally represent[ed] [defendant]”). As the Appellate Division dissent noted, counsel failed to advocate for appellant “before, during, and after the suppression hearing,” thereby depriving him of “meaningful adversarial representation” (A). In his request for a hearing, counsel alleged facts about a car stop even though appellant was chased on foot. After Lunt’s hearing testimony, counsel never corrected that obviously incorrect rendition of the facts, and made no other arguments for 21 suppression. And, when the court, in its written opinion, confused the undisputed chronology of the police chase, finding that appellant threw a gun before the chase rather than after, counsel did not correct it. The Appellate Division majority opinion, stating merely that counsel was not ineffective for failing to make opening and closing arguments and that counsel conducted “reasonably competent and thorough” cross examination, simply ignored counsel’s inexcusable errors (A. 3). Contrary to that decision, counsel’s performance, “viewed in totality,” utterly failed to provide meaningful representation at the suppression hearing (A. 3). Notably, the record revealed why counsel may not have been adequately prepared for appellant’s suppression hearing. In a motion to be relieved, just three days before the Mapp hearing, counsel indicated he was “overwhelm[ed]” with work because his associate had “unexpectedly” resigned and he lacked “sufficient time and/or resources to competently represent” all his clients (A. 35-37). When counsel appeared on the hearing date, he again requested to be relieved, noting not only that he had to be in court three or four times a week for immigration hearings, the bulk of his practice, but also that he was scheduled to start a trial that very same day. Accommodating the court, however, counsel acquiesced in its suggestion that he proceed with the hearing and get the case in “trial posture,” saying he would “then” make his motion to be relieved (A. 43). In contrast to appearing “for arraignment only,” counsel’s agreement in essence to appear “for suppression hearing only,” 22 despite having just sought to be relieved because he was overworked and unable to “competently represent” all his clients, gravely prejudiced appellant. The suppression hearing was the dispositive proceeding in this weapon possession case. Its outcome “spell[ed] the difference between conviction or acquittal,” Lombardi, 18 A.D.3d at 180 – indeed, whether a trial could even go forward – and counsel’s deficient performance demonstrated his admission that he could not “competently represent” appellant. Counsel’s “total failure” to present a suppression argument could not have been a valid strategy. See People v. LaBree, 34 N.Y.2d 257, 260 (1974) (citation omitted). In a weapon possession case, counsel could have no reasonable strategic explanation to request a suppression hearing, but then fail to argue anything at that hearing, much less a winning basis for suppression. Instead, counsel had “everything to gain and nothing to lose” by arguing that the officers lacked reasonable suspicion to chase appellant. People v. Donovan, 184 A.D.2d 654, 655 (2d Dep’t 1992). Moreover, there could have been no legitimate reason for counsel to fail to correct the court’s inaccurate decision, which was “unquestionably more prejudicial to [appellant] than the actual hearing testimony” (A. 7). Although relieved, counsel had the opportunity to draw this error to the court’s attention when he transferred the case to the new attorney in court the following day. Had counsel argued at any point that the police did not have reasonable suspicion to chase appellant or corrected the court’s error that appellant was only 23 chased after he threw the weapon, the hearing court would have had no alternative but to suppress the weapon. Because it was the only evidence against appellant, its suppression would have resulted in a dismissal of all charges. Instead, counsel was admittedly unprepared and appellant was convicted, and is now serving an eight-year prison term despite the patent violation of his constitutional rights. Under either the federal or state standard, counsel’s performance was inadequate. This Court should, therefore, reverse appellant’s conviction, suppress the evidence, and dismiss the indictment. CONCLUSION FOR THE FOREGOING REASONS, 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: November 12, 2012 New York, New York