The People, Respondent,v.Rashid Bilal, Appellant.BriefN.Y.February 11, 2016ourt of Oral Argument of 15 minutes requested by RACHEL T. GOLDBERG pp ea ls $tate of j}ebJ ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2014-00252 RASHID BILAL, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RACHEL T. GOLDBERG rgoldberg@cfal.org Of Counsel December 8, 2014 ROBERT S. DEAN Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 Phone: (212) 577-2523 ext. 529 Fax: (212) 577-2523 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................... iii PRELIMINARY STATEMENT ......................................... 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMJ\1ARY OF ARGUMENT .......................................... 2 STATEl'vfENT OF FACTS ............................................. 5 'fhe ·rrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Prosecution's Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Police Pursuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Arrest and Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Verdict and Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The C.P.L § 440.10 Morion ........................................ 8 Counsel's Failure to File a Suppression l\!Iorion . . . . . . . . . . . . . . . . . . 8 Appellant's :Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The People's Response and Appellant's Reply . . . . . . . . . . . . . . . . . . 10 The Lower Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Appellate Division Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1\RG UivIENT APPELLANT \VAS PREJUDICED BY HIS ATTORl'JEY'S INEXCUSABLE FAILURE TO J\!JOVE FOR SUPPRESSION HEARING, WHERE "COLORJ\BLE" BASIS EXISTED FOR SUPPRESSION OF THE GUN. U.S. CONST., Al\!lENDS. VI, XIV; N.Y. CONST., ART. I,§ 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Standards Governing Ineffective Assistance of Counsel Claims. . . . . . . 15 B. Counsel's Performance Fell Below A Minimum Standard of Reasonableness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C. Counsel's Deficient Performance Prejudiced Appellant . . . . . . . . . . . . . 19 i. To establish prejudice where counsel unreasonably failed to make a critical pretrial motion, appellant must show that the merits of the motion are "colorable". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ii. Appellant has at least a colorablc-if not "close"-argument that the police did not have reasonable suspicion to pursue him when they first encountered him, and his flight did not escalate the encounter because there was no evidence he knew he was fleeing from police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 D. This Court Should Reverse Appellant's Conviction and Remand for a New Trial; Or, at the Very Least, Remand for a Suppression Hearing. . . . 32 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 PRINTING SPECIFICATIONS STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 38 11 TABLE OF AUTHORITIES Federal Cases Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Hinton v. Alabama, 134 S.Ct. 1081 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 34 Jones v. Barnes, 463 U.S. 745 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Kimmelman v. l\!Iorrison, 477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 20 Lafler v. Cooper, 132 S.Ct. 1376 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 35 Moran v. Burbine, 475 U.S. 412 (1986) ................................... 16 Strickland v. Washington, 466 U.S. 668 (1984) .......................... 15, 34 Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30 United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 United States v. J\fatos, 905 F.2d 30 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Carmichael, 216 F.3d 224 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. l\!forrison, 449 U.S. 361 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. Wade, 388 U.S. 218 (1967) ............................... 16 Waller v. Georgia, 467 U.S. 39 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 State Cases In re l\!fanual D., 19 A.D.3d 128 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 In re Rubin 1\1., 271 A.D.2d 291 (1st Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Baldi, 54 N.Y.2d 137 (1981) .................................... 15 ill People v. Beckett, 88 A.D.3d 898 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . 27, 29 People v. Benevento, 91 N.Y.2d 708 (1998) ......................... 14, 15, 16 People v. Bennett, 29 N.Y.2d 462 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 34 People v. Brown, 115 A.D.3d 38 (1st Dept. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Brown, 199 A.D.2d 327 (2d Dept. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Burton, 6 N.Y.3d 584 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Carracedo, 89 N.Y.2d 1059 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Carrasquillo, 54 N.Y.2d 248 (1981) .............................. 25 People v. Clermont, 22 N.Y.3d 931 (2013) ............................. passim People v. Collado, 72 A.D.3d 614 (1st Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Concepcion, 17 N.Y.3d 192 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. De Bour, 40 N.Y.2d 210 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 30 People v. De La Hoz, 131A.D.2d154 (1st Dept. 1987) ..................... 23 People v. DeLeon, 35 A.D.3d 758 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Ellsworth, 131A.D.2d109 (3d Dept. 1987) ....................... 18 People v. Ferguson, 114 A.D.2d 226 (1st Dept. 1986) ....................... 11 People v. Ford, 86 N.Y.2d 397 (1995) .................................... 15 People v. Garcia, 75 N.Y.2d 973 (1990) ................................ 3, 22 People v. Garrett, 23 N.Y.3d 878 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 35 1V People v. Gil, 285 A.D.2d 7 (1st Dept. 2001) ........................... 22, 34 People v. Henry, 95 N.Y.2d 563 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Hobot, 84 N.Y.2d 1021 (1995) ................................. 14 People v. Hodge, 53 N.Y.2d 313 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Hollman, 79 N.Y.2d 181 (1992) ........................... 24, 25, 26 People v. Holmes, 81 N.Y.2d 1056 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Howard, 50 N.Y.2d 583 (1980) .............................. 25, 31 People v. Kevin W., 22 N.Y.3d 287 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. LaFontaine, 92 N.Y.2d 470 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Lovett, 189 A.D.2d 696 (1st Dept. 1993) ......................... 27 People v. l\fajor, 96 A.D.3d 677 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. :!'vfartinez, 80 N.Y.2d 444 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. rvkCullough, 31 A.D.3d 812 (3d Dept. 2006) ...................... 31 People v. l\kQueen, 307 J\.D.2d 765 (4th Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . 22 People v. ]\!foore, 6 N.Y.3d 496 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 28, 30 People v. Oliveras, 21 N.Y.3d 339 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 34 People v. Riddick, 70 A.D.3d 1421, (4th Dept. 2010) ....................... 29 People v. Rivera, 71 N.Y.2d 705 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21, 22 People v. Sierra, 83 N.Y.2d 928 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Slaughter, 78 N.Y.2d 485 (1991) ................................ 33 v People v. Smalls, 83 A.D.3d 1103 (2d Dept. 2011) .......................... 31 People v. Smith, 32 A.D.3d 553 (3d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Surowka, 103 A.D.3d 985 (3d Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Torres, 115 A.D.2d 93 (1st Dept. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. W'ardlaw, 6 N.Y.3d 556 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. William II, 98 N.Y.2d 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Federal Statutes U.S. Const., Amend. VI ............................................ passim U.S. Const., Amend. XIV ........................................... passim New York State Statutes N.Y. Const., Art. I, § 6 ............................................. passim Crim. Proc. Law § 440.10 ........................................... passim Crim. Proc .Law§ 470.35(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Penal Law§ 70.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Penal Law§ 265.03(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 36 Vl COURT OF APPEALS STATE OF NE\'V YORl<:. ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NE\'V YORK, Respondent, -against- ~ASHID BILAL, Defendant-Appellant. ------------------------------------------------------------------------x PRELIMINARY STA TEJ'vIENT By permission of the Honorable Jenny Hivera, Associate Judge of the Court of Appeals, granted September 25, 2014,1 this appeal is taken from an order of the Appellate Division, First Department, entered June 5, 2014, affirming the judgn1ent of comriction by the Supreme Court, New York County (Stolz, J.), rendered September 6, 2012, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law§ 265.03(3)), and affirming an order rendered on August 9, 2013, by the same court, denying appellant's motion pursuant to N.Y. Crim. Proc. Law§ 440.10, which sought to vacate the judgment of conviction (A4). The issues herein were preserved for appellate review by the trial court's denial of appellant's § 440.10 motion, which argued that trial counsel was ineffective for 1 The order granting leave to appeal is set forth in the Appendix at A2. Citations to the appendix are in parentheses preceded by "A". 1 failing to move for a suppression hearing based on a misunderstanding of the law, and that appellant was prejudiced by counsel's inadequate representation (A16-17, A57, A60). The trial court agreed that counsel should have moved for a suppression hearing, but found that appellant was not prejudiced by counsel's failures; the Appellate Division affirmed (A4, A57, A60). On October 23, 2014, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. No motion was made for a stay, and appellant is incarcerated pursuant to the judgment. He had no co-defendants. QUESTION PRESENTED \'Vhether appellant was prejudiced by his attorney's inexcusable failure to move for a suppression hearing, where a "colorable" basis existed for suppression of the gun. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I,§ 6. SUl'vil'vIARY OF ARGUJ\1ENT Appellant Rashid Bilal was convicted of second-degree gun possession (N.Y. Penal Law§ 265.03(3)), and the most important evidence against him was the testimony of the police officer who recovered the gun after a pursuit, and the gun itself. Although suppression of the gun would have ended the case, Bilal's defense attorney failed to move for a suppression hearing because he erroneously believed Bilal lacked standing to do so. Bilal filed a C. P .L. § 440 .10 motion alleging ineffective 2 assistance of counsel. The lower court and the Appellate Division agreed that counsel should have moved for a Mapp hearing, but mistakenly found that no relief was warranted because Bilal would not have won the hearing and thus suffered no prejudice. That decision is wrong, and should be reversed. The Appellate Division erroneously concluded that the suppression issue was not "close" under tbis Court's recent decision in People v. Clermont, 22 N.Y.3d 931 (2013). However, because Bilal did not have the chance to litigate the suppression issue-in contrast to the defendant in Clermont-the Fourth ~A~mendment issue here does not need to be "close," but merely "colorable." See People v. Garcia, 75 N.Y.2d 973 (1990) ("To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's failure to pursue 'colorable' claims"). Based on trial record facts, Bilal can surely make out a "colorable," if not "close," suppression claim. The lower courts used the wrong rubric to analyze Bilal's Fourth Amendment claim. Uncontested facts adduced at trial establish that, upon receiving an anonymous call that a black male wearing a black jacket had fired shots in the vicinity, the undercover officers saw Bilal-a nineteen year-old black man wearing a grqy jacket-emerge from a large apartment complex with a friend, two blocks away from the shots-fired location. The officers pulled up behind Bilal and his 3 friend in an unmarked car and said "hey buddy, come here," without identifying themselves as law enforcement. Bilal ran, and the officers pursued. During the pursuit, one of the officers saw Bilal throw a black object, which turned out to be a gun, over a fence. In finding that Bilal's "flight" justified the pursuit, the lower courts ignored the critical lack of evidence that Bilal knew he was running from police. Absent that, or more evidence that Bilal had committed a crime, the officers had no reasonable suspicion at the time they pursued him, and any abandonment of the gun was a spontaneous response to their unlawful pursuit. Given these facts, a competent attorney would have had at least a colorable argument for suppression at a Mapp hearing. Because counsel's inexcusable failure to move for a suppression hearing impacted the planning of the subsequent trial defense and the tenor of the entire case, moreover, Bilal is entitled to a new trial, to be preceded by a suppression hearing. the very least, he is entitled to a suppression hearing under both state and federal standards for ineffective assistance of counsel. See I<:immelman v. Morrison, 477 U.S. 365, 3 7 5-7 6 (1986) (remanding for a suppression hearing where counsel inexcusably failed to move for one); People v. Ilivera, 71 N.Y.2d 705, 709 (1998) (defendant could be entitled to relief where counsel failed to pursue "colorable" suppression issue). 4 STATEMENT OF FACTS The Trial The Prosecution's Case The Police Pursuit On December 27, 2008, Officer Richard Pengel was working as a plainclothes officer as part of the Anti-Crime unit in Harlem (A69-70). At approximately 9:30 pm, a dispatch came over his police radio that a 911 call had reported shots fired in the vicinity of 150th Street and Macombs Street (A69-70). Pengel was driving an unmarked police car with Officer Nicholas ]\fansfield in the front seat and Officer Carlos :Matos and Lieutenant O'Neill in the back seat (A 70). The radio communication described the perpetrator only as "a black male wearing a black bubble jacket" (A99). The officers received no information about the direction this perpetrator was headed, or the source of the emergency call. Pengel "felt that the perpctratorO might try to use" the Dunbar Apartments at Seventh Avenue and 149th Street-which are a block long and comprised of at least ten buildings-as a way to leave the scene of the shooting, so they proceeded to the apartment complex, located two blocks from where the shots were reportedly fired (A71, A93, A96, A98). Almost as soon as they pulled up, the officers saw a tall, black male wearing a gray jacket and a shorter black male wearing a black bubble jacket leaving one of the many exits of the apartment complex, then turn and walk calmly down the sidewalk 5 (A 72, A93, A94). The tall man wearing the gray jacket turned out to be Bilal, and the shorter man wearing the black bubble jacket was IYiatthew Taylor, Bilal's friend (A 72, A99). 2 The officers, who were behind the two men coming out of the apartment complex, "decided to approach the individuals to question them about if they heard shots fired in the area" (A 72) and because "the person that allegedly fired the shots was described as a male black wearing a black bubble jacket"-Taylor's attire (A99). Pengel stopped the car directly behind Bilal and his friend walking down the sidewalk, and O'Neill got out of the car, calling out "hey buddy, come here," without identifying himself as a police officer (A 72-73, A96). None of the officers were in uniform, and their car was unmarked; nothing "on the outside .... would designate it as a police car" (A91-92). 3 Taylor stopped, but Bilal began running. Pengel did not see Bilal turn around to find out who was calling to Taylor before he ran (A 73, A96). Pengel "pursue[d]" Bilal and "gave chase" in his car (A73-74, A96, A104). IYfansfield and IYlatos also chased Bilal, engaging in a "foot pursuit" (A97, A109). Pengel did not identify himself as an officer, and never heard any of the other officers identify themselves as police before they began chasing Bilal (A97-98, A109-10). 2 Matthew Taylor was not indicted for this incident. 3 Pengel drove the same unmarked car around the same one-square mile neighborhood five out of seven days a week, so occasionally residents recognized him to be a police officer despite his working undercover (Al 12-13). Bilal lived in Brooklyn, and Pengel had never seen hit11 before (A 113). 6 Bilal crossed directly in front of Pengel's car and then continued running down the sidewalk (A 7 4). Pengel could not tell whether Bilal ever looked back at him (A105). After about a block, Pengel observed Bilal stop in front of a fenced-in construction site and throw a black object over the fence, but had not seen any object in Bilal's hand before that moment (A74-75, A105). Bilal continued running, and Pengel ordered him to stop several times, intermittently hitting his air horn (A 7 5, A109-11). Bilal stopped running approximately two blocks from where he originally left the apartment complex (A 7 5). After Bilal stopped, Pengel exited his vehicle, and Mansfield, who had also been pursuing Bilal, "came running up behind" (A 75). Pengel "grabbed Bilal and took him to the ground" (A109). The Arrest and Investigation The officers arrested Bilal, and Officer Robert Sirignano, of the l\fanhattan orth Evidence Collection team, recovered a loaded revolver behind the fence where Pengel claimed to see Bilal throw the black object (i\89, A109-10; Al 74-75). The recovered gun was swabbed in three locations for trace DNA; l'v1edical Examiner }Cristen Smith combined this DNA and found that at least three individuals could have contributed to the sample (A129, A134). Bilal could neither be identified nor excluded as one of the contributors (A129). Ballistics expert Stephen Deady compared the recovered gun to bullets 7 discovered at the scene where the shots were reported fired and found that they matched (A154). The prosecution recovered and played for the jury two surveillance videos recorded near the location of the shooting, which appear to show a black male in a dark jacket shoot a gun (AJ41-42, A201, A208). The prosecution also introduced Bilal's gray jacket into evidence (A87-88). V crdict and Sentence The jury convicted Bilal of criminal possession of a weapon in the second degree (A234). Bilal was nineteen at the time of his arrest, which was his first (A242). During the trial, Bilal had been out on bail, working at 1\!IcDonald's, and had never missed a court appearance during the two years the trial was pending (A243). The Department of Probation recommended that Bilal receive a Certificate of Relief from Disabilities (A242). The trial court sentenced Bilal to five years' imprisonment, to be followed by two and-a-half years' post-release supervision (A246). The C.P.L § 440.10 I\1:otion Counsel's Failure to File a Suppression Morion Defense counsel never filed a motion seeking a 1\!Iapp hearing to suppress the evidence recovered pursuant to an illegal police intrusion. Despite the fact that Bilal 8 was indicted based on a criminal complaint stating that Pengel "recovered a loaded gun from where [he] observed the defendant throw it" (A247, A248), trial counsel admitted during a meeting with Bilal's appellate counsel that he believed Bilal would not have had standing to challenge the tainted evidence without conceding possession of it and that he had "never thought about" relying on the prosecution's proof to establish standing (A13-14). Trial counsel also acknowledged that if he knew he could have established standing to challenge the unconstitutional police action, he would have moved for suppression Appellant's Motion 3-14). On February 27, 2013, Bilal filed a C.P.L. § 440.10 morion, asserting that counsel failed to provide effective assistance of counsel under both state and federal standards because, based on an unjustifiable ignorance of the law and for no conceivable strategic reason, he failed to move for a ivfapp hearing, which was disastrous for Bilal. Citing People v. Burton, 6 N.Y.3d 584, 589 (2006), among other cases, Bilal demonstrated that, contrary to counsel's erroneous assumption, a defendant can rely on the prosecution's proof to establish the requisite standing for a J\!Iapp hearing, so Bilal would have been granted a suppression hearing had counsel moved for one (i\20-23). Bilal argued that he likely would have won a suppression hearing because, based on facts adduced at trial, the police did not have reasonable suspicion to pursue 9 him when they first encountered him, and his flight did not escalate the encounter. Therefore, counsel's failure to move for a suppression hearing was prejudicial. Given the unconstitutionality of the police pursuit, the prosecution's main evidence against Bilal-the gun and the testimony about the chase-would have been suppressed as fruit of the poisonous tree and changed the outcome of the case (A31-32). The People's Response and Appellant's Reply The People all but conceded the first prong of Bilal's ineffective assistance of counsel claim. The People did not contest that trial counsel should have moved for a l\fapp hearing, and agreed that "there [wa]s no legitimate or strategic reason for the defendant's attorney not to pursue a [suppression] hearing" (A39). Nor did the People contest that Bilal would have been granted a suppression hearing upon request. The People also acknowledged that a successful l\fapp hearing "would have likely resulted in the defendant being acquitted of the charge" (A39). Instead, the People focused on the prejudice prong of the ineffective assistance of counsel claim, arguing that Bilal was not prejudiced by his attorney's failure to move for suppression because he would not have won the J\1app hearing in any case. Specifically, they argued that the police acquired reasonable suspicion to chase Bilal once he fled (A41, A42-44). The People asked the court to hold a J\fapp hearing if it could not determine the Fourth }\mendment claim based on record facts (A45). In a reply memorandum oflaw, Bilal argued that to prevail on an 10 ineffectiveness claim, he did not need to show that he would have won a suppression hearing to a certainty, but that he needed to prove only that the police activity was "highly questionable," and that he raised a '"colorable basis for suppression,"' citing to People v. Ferguson, 114 A.D.2d 226 (1st Dept. 1986), and People v. :l'vfajor, 96 A.D.3d 677, 678 (1st Dept. 2012) (A50-51). The Lower Court's Decision On August 9, 2013, the Supreme Court, New York County (Hon. Robert Stolz) denied Bilal's motion. The court agreed with Bilal that "counsel's failure to move for suppression hearing was error, particularly in a case where suppression of the gun would in all likelihood have meant the end of the case" (A57). The court noted that the People did not "argue that counsel's inaction was based on a strategic decision. Nor is there a persuasive argument to be made" that it was (J\57). However, the court held that Bilal's suppression motion "in all likelihood" would have been denied, so he failed to show prejudice. Specifically, the court found that the police did not violate Bilal's constitutional rights when they chased him because "[w]here a defendant flees from the police, who have justification for a common-law right to inquire, the predicate ripens into reasonable suspicion and permits police pursuit or limited detention" (ASS). Appellate Division Proceedings The Appellate Division, First Department, granted leave to appeal the C.P.L. § 11 440.10 denial, in an order consolidating Bilal's direct appeal. On that appeal, Bilal argued that he was prejudiced by his attorney's failures because he likely would have won a Nlapp hearing, and asked the Appellate Division to reverse Bilal's conviction and dismiss the indictment. He also argued, in the alternative, that at the very least, the court should hold Bilal's conviction in abeyance and remand for a suppression hearing, given that Bilal's Fourth Amendment arguments were at least "close" under this Court's decision in People v. Clermont, 22 N.Y.3d 931 (2013). The intermediate court agreed that trial counsel's representation fell below reasonable standards. However, it rejected Bilal's arguments about prejudice: "[a]lthough counsel's failure to move to suppress the weapon had no strategic justification but was based on a misunderstanding of the law, that error did not cause defendant any prejudice under the state or federal standards" (A3). Specifically, the I:<'irst Department agreed with the lower court that: [B]ased on undisputed material facts ... defendant would not have prevailed on a suppression motion. Unlike the situation in People v. Clermont, 22 N.Y.3d 931 (2013), this was not a 'close' suppression issue where a properly litigated motion might have been successful, or where a suppression hearing is now warranted in the interest of fairness. Instead, the undisputed facts establish that when added to the information already known to the police, defendant's flight created reasonable suspicion warranting pursuit. (A4) (citing to People v. Moore, 6 N.Y.3d 496, 500-501 (2006) and People v. Collado, 72 A.D.3d 614 (1st Dept. 2010)). This appeal follows. 12 ARGUJ\1ENT APPELLANT WAS PREJVDICED BY HIS ATTORNEY'S INEXCUSABLE FAILURE TO MOVE FOR A SUPPRESSION HEARING, \'VHERE "COLORABLE" BASIS EXISTED FOR SUPPRESSION OF THE GUN. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I, § 6. Appellant Rashid Bilal's attorney unjustifiably failed to make a motion for a suppression hearing in this gun possession case, and, contrary to the Appellate Division's decision, Bilal was prejudiced by his attorney's failure. The Appellate Division found that Bilal did not deserve relief because, relying on this Court's recent decision in People v. Clermont, 22 :-J.Y.3d 931 (2013), the arguments for suppression were not "close" (A4). However, the minimum threshold for relief where counsel has utterly failed to make a vital pretrial motion is only that the underlying claim be "colorable"-a standard more favorable to defendants than the "close" standard articulated in Clermont and relied upon by the Appellate Division. Bilal has at least a colorable argument that the police violated his constitutional rights. The police were responding to an extremely vague radio call about shots fired by a single black male in a black puffy jacket, without any information about who made the emergency call or where the perpetrator was headed, in a populated neighborhood in the early evening on a Saturday, and where Bilal was two blocks away, did not even match the generic description, and did not make any furtive movements. Therefore, the police were permitted, at most, only to ask Bilal questions 13 without forcibly stopping him. Bilal's "flight" did not elevate the predicate, because there is no evidence he knew he was running from police. Consequently, Bilal has a colorable claim that the police violated his Fourth Amendment rights and that all fruits recovered as a result of the officers' unlawful pursuit should have been suppressed. The deprivation of the hearing-whatever its outcome-affected his trial in crucial ways. For instance, had counsel been able to question the officers, he could have obtained impeachment material for use at trial. Or, what counsel learned might have provided additional avenues for investigation. Or, the information he acquired might have changed Bilal's calculus in considering a guilty plea. Because Bilal had at least a "colorable," if not "close" argument for suppression, and because a hearing would have been valuable for its own sake regardless of the result, defense counsel's failure to competently represent Bilal prejudiced him and "seriously compromise[d his] right to a fair trial." People v. Hobot, 84 N.Y.2d 1021, 1022 (1995); see People v. Benevento, 91 .Y.2d 708, 711 (1998). Bilal was, therefore, denied his state and federal constitutional rights to the effective assistance of counsel. His conviction should be reversed, and he should be granted a new trial, to be preceded by a suppression hearing. At the very least, Bilal is entitled to a suppression hearing. See U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I,§ 6; Kimmelman v. l'viorrison, 477 U.S. 365 (1986); Benevento, 91 N.Y.2d at 708. 14 A. Standards Governing Ineffective Assistance of Counsel Claims. The right to the effective assistance of counsel is a basic right guaranteed by both the Federal and New York State Constitutions. See U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I,§ 6; People v. Ford, 86 N.Y.2d 397, 404 (1995). defendant seeking to establish a denial of effective assistance of counsel must show both attorney incompetence and harm. T'he attorney-competence standard is the same under both the federal and state tests: a defendant must establish that his counsel's performance was deficient, i.e., that counsel's "performance fell below an objective standard of reasonableness." Strickland v. \Vashington, 466 U.S. 668, 688, 694 (1984); see Benevento, 91 N.Y.2d at 712 (requiring "meaningful representation"); People v. Baldi, 54 N.Y.2d 137, 147 (1981) (same). The federal and state tests differ slightly in the prejudice standard they apply. The federal standard requires that a defendant demonstrate that "but for counsel's unprofessional errors, there is a 'reasonable probability' that the outcome of the proceedings would have been different." Strickland, 466 U.S. at 694. The New York standard is "somewhat more favorable to defendants." People v. Turner, 5 N.Y.3d 476, 480 (2005). In New York, "relief is ... appropriate under our meaningful representation standard, which does not invariably require a strict showing of prejudice." Clermont, 22 N.Y.3d at 934 (emphasis added). To that end, reviewing 15 courts should focus on the "fairness of the process as a whole." Benevento, 91 N.Y.2d at 713-14; see also People v. Henry, 95 N.Y.2d 563, 565 (2000), rev'd sub nom. on habeas Henry v. Poole, 409 F.3d 48 (2d Cir. 2005); People v. Caban, 5 N.Y.3d 143, 155 (2005). The right to effective assistance of counsel extends to all critical stages of the proceedings, including pretrial suppression hearings. See l'vforan v. Burbine, 4 7 5 U.S. 412, 431 (1986); People v. Hodge, 53 N.Y.2d 313, 320 (1981); see also United States v. Wade, 388 C.S. 218, 225 (1967) (highlighting the importance of effective assistance of counsel at pretrial suppression hearing due to the fact that suppression hearings are frequently determinative of the prosecution); Clermont, 22 N.Y.3d 931 (finding ineffective assistance of counsel for deficient performance at suppression hearing). B. Counsel's Performance Fell Below A Minimum Standard of Reasonableness. Counsel's decision not to move for a Mapp hearing was based on an admitted ignorance of the law, rather than on any conceivable strategic decision. Unsurprisingly, then, the trial court properly found that "counsel's failure to move for a suppression hearing was error, particularly in a case where suppression of the gun would in all likelihood have meant the end of the case" (A57). After all, the People did not "argue that counsel's inaction was based on a strategic decision" (A57). The Appellate Division agreed that "counsel's failure to move to suppress the weapon had no strategic justification [and] was based on a misunderstanding of the law"(A3). 16 Because the courts below found in Bilal's favor on this issue, this Court may not deny Bilal relief on the ground that counsel's failure to move for suppression was somehow reasonable or strategic. C.P.L. § 470.35(1) bars the Court of Appeals "from affirming a judgment, sentence, or order on a ground not decided adverse!J to the appellant by the trial court." People v. Concepcion, 17 N.Y.3d 192, 19 5 (2011) (emphasis in original). Those provisions are "legislative restriction[s]" on the power of appellate courts "to review issues either decided in appellant's favor, or not ruled upon, by the trial court." Id. (quoting People v. LaFontaine, 92 N.Y.2d 470, 474 (1998)). Because the lower court found that counsel should have moved for suppression, a ruling that was "not adverse" to Bilal, it is not reviewable by this Court. 4 In any event, in failing to move for a l'vfapp hearing, counsel wholly abdicated his duty to provide effective counsel to his client. After all, [e]ssential to any representation, and to the attorney's consideration of the best course of action on behalf of the client, is the attorney's investigation of the law, the facts, and the issues that are relevant to the case ..... Thus, '[a] defendant's right to representation does entitle him to have counsel conduct appropriate investigations, both factual and ~ This Court's recent ruling in People v. Garrett, 23 ~.Y.3d 878 n.2 (2014) does not suggest otherwise. This Court noted that in cases "involving a single multipronged legal ruling, LaFomaine does not prevent us from reviewing all preserved aspects of the [multi-part test] simply because the nisisprius court neglected to mention an element of the multi-factor ... test." Id. (emphasis added). First, Catrett does not apply here because the lower court did not fail to mention the issue; it explicitly ruled on the merits of the issue-in Bilal's favor. Second, this issue is unpreserved. In the proceedings below, the People did not argue that counsel's failure to move for a suppression hearing was reasonable, and in fact argued that "there [wa]s no legicin1ate or strategic reason for the defendant's attorney not to pursue a [suppression] hearLrig" (A39). 17 legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial.' People v. Oliveras, 21 N.Y.3d 339, 346 (2013) (quoting People v. Bennett, 29 N.Y.2d 462, 466 (1972); see also Hinton v. Alabama, 134 S.Ct. 1081, 1089 (2014) ("An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland."); People v. Ellsworth, 131 A.D.2d 109, 112-13 (3d Dept. 1987) (finding ineffective assistance of counsel where trial attorney failed to move for a Mapp hearing because he was "unaware of the pertinent law" and had not read a leading case). Counsel admitted that he did not move for a suppression hearing because he believed Bilal would have to concede possession of the gun in order to establish standing, and "never thought about" alternative means of establishing standing. In its indictment in the case at bar, the prosecution specifically alleged that Bilal personally possessed a gun, and Pengel stated in the criminal complaint that he saw Bilal discard a gun (A13, A247, A248). Even a modicum oflegal research would have disclosed that a defendant can rely on the People's proof to establish standing. See People v. Burton, 6 N.Y.3d 584, 588-89 (2006) (holding it was error to summarily deny the defendant's motion to suppress physical evidence on the ground that the defendant had not admitted possession of the contraband allegedly recovered from him because "in assessing the adequacy of a motion to suppress tangible evidence, a defendant is 18 entitled to rely on the People's proof to demonstrate standing"). Accordingly, counsel could have successfully moved for a suppression hearing. Further, as the lower court found, there was no possible strategic reason for not moving to suppress (A57) ("[T]here is [no] persuasive argument to be made" that it was a strategic decision.). Because nearly all the evidence introduced at trial derived from the gun's recovery, the defense case primarily consisted of rebutting the gun- related evidence. No viable reason exists for defense counsel to have preferred such evidence to have come in at trial. After all, even the prosecution acknowledged that "had the defendant been successful in the Mapp hearing the suppression of the weapon would have likely resulted in the defendant being acquitted of the charge because he was charged solely with posscssory charges" (A39). C. Counsel's Deficient Performance Prejudiced Appellant Because defense counsel failed to make a critical pretrial suppression motion, Bilal must show merely that he had a colorable basis for suppression in order to establish prejudice. The record facts establish that Bilal had at least a colorable claim that the police violated his Fourth Amendment rights. Yet defense counsel unreasonably sacrificed Bilal's opportunity to make this argument and hold the People to their burden at a suppression hearing. These circumstances entitle Bilal to relief. 19 i. To establish prejudice where counsel unreasonably failed to make a critical pretrial motion, appellant must show that the merits of the motion are "colorable". The Appellate Division was wrong to conclude that counsel's error "did not cause defendant any prejudice" (A4). To prevail on an ineffectiveness claim under the state prejudice standard, Bilal must show only that the fairness of the proceedings was compromised because his Fourth Amendment claim was "colorable," a more generous standard than the "closeness" standard in Clermont, 22 N.Y.3d 931, and relied upon by the Appellate Division here. 5 In Clermont, as here, a "suppression motion could have been dispositive of the entire proceeding given that defendant was charged solely with weapon possession offenses stemming from his encounter with police and, had suppression been granted, the indictment would have been dismissed." Id. at 934. However, in Clermont, unlike here, the defendant actually had a suppression hearing; the 5 Bilal's attorney was ineffective under the federal standard as well. In order to show that counsel's deficient performance prejudiced a defendant under federal law, a defendant must demonstrate a "meritorious Fourth Amendment issue," and there must be a "reasonable probability" that the verdict would have been different had the evidence been suppressed. Kimmelman v. Morrison, 477 U.S. 365, 375-76 (1986). In a case similar to Bilal's, the attorney in Kimmclman failed to request discovery and failed to move to suppress physical evidence in a rape case, for no strategic reason, though he did provide competent representation at trial. The Supreme Court did not expound upon the meaning of "meritorious" in this context, but explained it could not make a finding of prejudice one way or the other because there was never an evidentiary hearing on the suppression issue, so remanded for a suppression hearing. Id. at 388; see also U.S. v. Matos, 905 F.2d 30, 34 (2d Cir. 1990) (finding, in the interest of justice, that defendant was entitled to an "evidentiary hearing to develop factual matters related to whether attorney's conduct was reasonable and to allow government to prove the validity of the search and the arrest" where counsel failed to move for suppression). Similarly here, any inability to make a finding of prejudice is due to counsel's failure to move for a suppression hearing. Therefore, under the federal ineffective assistance standard, Bilal deserves relief. 20 ineffectiveness lay in counsel's failure to make the appropriate suppression argument or correct a factual mistake in the record. Therefore, this Court remanded for further suppression proceedings and found that it was not "necessary ... to discuss the merits of the suppression issue to decide the ineffective assistance claim, other than to note that, on appeal, the parties have presented substantial arguments for and against suppression and the issue is close under our complex De Bour jurisprudence." Id. at 933. Given the facts of Bilal's pursuit adduced at trial, see Point C(ii), ante, the suppression issue was at least as "close" as in Clermont. However, Court of Appeals precedent, as well as fundamental fairness, compel a lower bar for relief for a defendant who has not had the opportunity to litigate the suppression issue at all. In Clermont, at least there was a suppression hearing; while counsel failed to marshal arguments on behalf of his client, defendant Clermont had the opportunity to litigate the issue and gather facts he could use during plea negotiations and at trial, in a proceeding at which the People had the burden of proving the legality of the police intrusion. Bv contrast, in cases which counsel made no motion at all, as here, this Court has suggested a more generous prejudice standard, reguiring only that the underlying claim be "colorable." In the two companion cases in People v. Rivera, 71 N.Y.2d 705, 709 (1988), this Court rejected the defendants' ineffective assistance of counsel claims because 21 they failed to rnake out prong one, but noted that a claim could lie where there was no strategic reason for an attorney's failure to pursue a "colorable" suppression issue. Accord People v. Garcia, 7 5 N .Y.2d 973 (1990) (denying defendant's claim that counsel was ineffective for failing to challenge his arrest, because "[t]o prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's failure to pursue 'colorable' claims") (quoting Rivera, 71 N.Y.2d at 709). Every Appellate Division court acknowledges this standard. See, e.g., People v. Surowka, 103 A.D.3d 985, 987 (3d Dept. 2013) (rejecting ineffective assistance of counsel claim based on counsel's failure to make a suppression motion because there was no "colorable" basis for suppression); People v. DeLeon, 35 A.D.3d 758, 758 (2d Dept. 2006)(same); People v. J\1cQueen, 307 _A.D.2d 765, 766 (4th Dept. 2003) (same); People v. Gil, 285 A.D.2d 7, 15 (1st Dept. 2001) (finding counsel ineffective where he failed to "pursue colorable suppression issues"). While this Court has not explicitly defined "colorable" in the context of ineffective assistance of counsel, both the United States Supreme Court and various _:\ppcllate Divisions have defined "colorablc" as merely "nonfrivolous." See Jones v. Barnes, 463 U.S. 7 45, 7 50 (1983) (using "colorable" and "nonfrivolous" interchangeably in the ineffective assistance of counsel context); People v. Smith, 32 A.D.3d 553, 555 (3d Dept. 2006) (defining "colorable" as "nonfrivolous"); People v. 22 Brown, 199 A.D.2d 327, 328 (2d Dept. 1993) (using "colorable" and "nonfrivolous" interchangeably in the ineffective assistance of counsel context); People v. De La Hoz, 131A.D.2d154, 157 (1st Dept. 1987) (same). This distinction-the underlying claim must merely be "colorable" where counsel utterly fails to make a critical motion, but "close" when counsel makes the motion but fails to marshal facts or arguments at the hearing-comports with fundamental fairness. lower prejudice bar should apply to defendants who have not had any opportunity to engage in adversarial testing on a potentially dispositive issue or to elicit facts at a proceeding to which he was entitled, and where specific evidentiary burdens and rules of evidence pertain. In Bilal's case, where counsel unreasonably failed to make a motion for a hearing that surely would have been granted, and where the outcome of that hearing was critical to the case, he should only be required to show that the merits of the underlying claim are colorable. ii. Appellant has at least a colorable-if not "close"-argument that the police did not have reasonable suspicion to pursue him when they first encountered him, and his flight did not escalate the encounter because there was no evidence he knew he was fleeing from police. Bilal's Fourth Amendment claim is at least colorable. "'\s an initial matter, any ambiguous facts in the record should be read in Bilal's favor when determining prejudice. Given that he was unable to develop a suppression record due to inadequate counsel, he is forced to rely on the trial record, where the primary question was guilt or innocence, not the propriety of the police interaction. :Moreover, Bilal could have testified at a suppression hearing about the police encounter, while there was no reason for him to do so at his trial. To the extent that the trial record is unclear about the events surrounding the pursuit, or to the extent that Bilal is unable to meet the appropriate prejudice standard, the fault lies with defense counsel who abdicated his duty to request a suppression hearing. Given this disadvantage, Bilal is entitled to the benefit of every reasonable inference when considering the merits of his underlying Fourth Amendment claim, particularly because, at a suppression hearing, the burden lies with the People to prove the legality of a police intrusion. The starting point for analyzing the propriety of police actions in street encounters with citizens in New York is, of course, People v. De Bour, 40 N.Y.2d 210 (197 6). Under the De Bour analysis, the police in Bilal' s case had no more than a common-law right to inquire, which requires a founded suspicion that criminal activity is afoot and which permits interference with a person to the extent necessary to gain explanatory information, short of a forcible stop or a seizure. De Bour, 40 N.Y.2d 210; People v. Hollman, 79 N.Y.2d 181 (1992). Pengel claimed that the officers approached Bilal and Taylor-two blocks away from the scene of the shots fired-for just this reason: to ask them if they knew anything about the shooting. Pengel also claimed the officers wanted to speak to the men because "the person that allegedly fired the shots was described as a male black 24 wearing a black bubble jacket" - which is what Taylor, not Bilal, was wearing (A99). When O'N" eill jumped out of the car and yelled "hey buddy, come here," without identifying himself as a police officer and apparently only speaking to one of the two men, the encounter was confined, at most, to a level-two inquiry. 6 However, the police escalated this encounter to a level three seizure when Bilal refused to submit to police questioning by running away from people he did not know were police, and three officers "pursue[d]" and "chase[d]" him (A 73-74, A96, A104). Because police pursuit of an individual "significantly impedes" the person's freedom of movement, New York courts follow the rule that police pursuit constitutes a "limited detention" requiring reasonable suspicion. People v. Howard, 50 N.Y.2d 583, 592 (1980); see People v. Holmes, 81N.Y.2d1056, 1057-58 (1993). Reasonable suspicion may not rest on "equivocal or innocuous behavior" that is susceptible of an innocent as well as culpable interpretation. People v. Carrasquillo, 54 N.Y.2d 248, 252 (1981). To justify a pursuit or forcible stop, "the police officer 6 Gh·en that the officer who called out to Taylor used non-threatening language that would not lead a reasonable person to believe he was the subject of an investigation, there is a colorable argument to be made that the police were actually engaged in only a level-one request for information. See People v. Holhnan, 79 N.Y.2d 181, 185 (1992) ("[A] request for information involves basic, nonthreating questions .... Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation, the officer is no longer merely seeking information. This has become a common-law inquiry."). It is well established that flight alone, even from those a suspect knows are police, cannot elevate a level-one request for information to a level-three intrusion. See People v. Holmes, 81 N.Y.2d 1056, 1058 (1993). To the extent that the record is not clear on whether this was initially a level-one or level-two encounter, the fault again lies with defense counsel who failed to request a suppression hearing where such facts and arguments could have been de;·eloped. 25 must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968); De Bour, 40 N.Y.2d at 213. Once an officer achieves a permissible level of intrusion, by virtue of the facts and circumstances of the case, he is limited to that degree of intrusion and may not exceed it absent a clear change in circumstance that would permit a greater level of intrusion. See generally Hollinan, 79 N.Y.2d at 181. To justify the police pursuit, then, the People would have to prove that there was reasonable suspicion to believe that Bilal had committed a crime, which they cannot now do. None of the factors that courts typically rely on to find reasonable suspicion were present in Bilal's case. First, the officers had neither a specific description of a crime nor a specific description of the perpetrators. All the officers heard was that shots were fired by a black man wearing a black "bubble jacket" two blocks away and over five minutes earlier. Given that this incident took place in late December, in a densely populated area of Harlem, just a few hours past dinner time on a Saturday evening, there were undoubtedly many people in a square block radius who fit the generic description of a black man in a puffy black jacket. J\foreover, Bilal was wearing a gray jacket, not a black jacket, so did not even fit the vague description provided, and Taylor, who was wearing a black jacket, had stopped. A general description of a suspect that fits innumerable members of the public cannot provide 26 the police with reasonable suspicion required for a stop. See, e.g., In re Rubin J\f., 271 A.D.2d 291 (1st Dept. 2000) (finding no reasonable suspicion where "the police approached and stopped [defendant] only because he matched the generic description of the perpetrator[,] ... a description which could just has easily have applied to countless Bronx and J\fanhattan residents"). Second, the police in Bilal's case had no information concerning the shooter's flight path from the reported shots-fired location. Instead, the police acted on a hunch and drove over to the sprawling apartment complex two blocks away. Because Bilal was not leaving a location specified by the radio call but was simply walking out of the apartment complex with his friend, the police hardly had reason to suspect that Bilal was the gunman-particularly because the area was not described as desolate, which can justify seizure when the person also matches a description. Compare People v. Beckett, 88 A.D.3d 898, 899-900 (2d Dept. 2011) (finding Fourth Amendment violation where "the defendant matched an extremely vague description of the suspect, which contained no information regarding the suspect's height or weight ... and the radio call did not indicate the direction the suspect was traveling") with People v. Lovett, 189 A.D.2d 696, 696 st Dept. 1993) (police, who knew "the apparent perpetrator's flight path," had reasonable suspicion to chase defendant, the only person in the vicinity of a shooting). Third, the police had no information regarding the reliability of the person 27 who made the initial call. See People v. :Yfoore, 6 N.Y.3d 496, 498 (2006) (finding an anonymous tip where defendant matched a "detailed" description warranted only a right to inquire, and defendant walking away did not elevate the predicate); In re 1\fanual D., 19 A.D.3d 128 (1st Dept. 2005) (finding suppression was warranted and that the lack of reliable information was a factor in the De Bour analysis). Fourth, it is well-established that flight can raise the predicate from a level two to a level three intrusion, but only when "a defendant's flight in response to an approach by the police, combine[s] with other specijic circumstances indicating that the suspect may be engaged in criminal activity." People v. Sierra, 83 N.Y.2d 928, 929 (1994) (emphasis added); People v. l\fartinez, 80 N.Y.2d 444, 446 (1992) ("The police may pursue a fleeing defendant if they have a reasonable suspicion that defendant has committed or is about to commit a crime," so flight in conjunction with unusual time, location, and the fact that defendant was seen removing drug paraphernalia provided reasonable suspicion); cf. People v. Brown, 115 A.D.3d 38, 40 (1st Dept. 2014) ("Fhght, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion."). In the context of Bilal's level-two stop-where he did not even match the generic description, where he did not make any furtive movements, where it was a well-populated area in the early evening, and where he was not running from the scene, his running did not raise the predicate to a level three intrusion. Fifth, and most critically, even if flight from police could elevate the predicate 28 in this instance, Bilal's running could not elevate the officers' suspicion because there was no evidence he recognized the officers as police. The law allows that flight can elevate the predicate if a suspect flees from police-but where there is no evidence the suspect knows he is fleeing from police, the mere fact of running does not suggest culpability. See, e.g., Beckett, 88 A.D.3d at 899 (suppressing where defendant fled and "the evidence presented at the hearing was insufficient to establish that the defendant knew that the officer was a police officer at the time he started to flee, as the officer was in plain clothes and was driving an unmarked Crown Victoria Patrol car"); People v. Riddick 70 A.D.3d 1421, 1423 (4th Dept. 2010) ("In the absence of any evidence indicating that the police officers were clearly identifiable as such, or that defendant recognized the officers as such, it cannot be said that the officers were justified in pursuing defendant based on his alleged 'flight' from the police."). Here, the plainclothed officers drove up in an unmarked car behind Bilal and his friend. There was no testimony that any officer displayed a police badge or otherwise identified himself as a police officer. l'vloreover, there was no evidence to suggest that Bilal recognized the men to be police officers, or even turned around to see who was behind him. The non-accusatory, everyday civilian language used by the officer-"hey buddy, come here"-gave no reason for Bilal to believe that the man was a police officer, either. That Bilal, who did not live in the neighborhood, ran from an unmarked vehicle from which a plainclothed officer jumped out and yelled 29 after dark, did not justify Pengel's or the other officers' pursuit of him. Bilal's reasonable response to a stranger's solicitation, without more, does not indicate any criminal activity. In context, his actions were innocuous, and because "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand," De Bour, 40 N.Y.2d at 216, the police had no right to pursue him.7 The Appellate Division made much of Bilal's running, but its reliance on this Court's decision in J'vfoore, 6 N.Y.3d at 500-01 (A4) is inapposite. In J'vfoore, police did not have the right to stop a suspect at gunpoint after receiving an anonymous, unpredictive tip, and police did not acquire reasonable suspicion merely because the suspect walked away from the crime scene upon seeing the police arrive. This Court contrasted J'vioore's behavior with actions that would justify a seizure under the circumstances: "Had defendant, for example, reached for his waistband prior to the gunpoint stop or active!J fled from police, such conduct, when added to the anonymous tip, would have raised the level of suspicion." Id. at 501. As established above, Bilal was not actively fleeing from individuals he knew to be police, so the alternative scenario suggested by ·Moore does not apply. 7 The officers' pursuit of Bilal was unlawful from its inception, so the fact that Pengel may have seen Bilal throw a gun over a fence during the last portion of the chase docs not provide ex post facto justification for his unlawful pursuit. See People v. William II, 98 N.Y.2d 93, 98 (2002) (in evaluating encounters between police and citizens, courts must determine whether the police action '"was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place'. \\!here a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion.") (quoting Terry, 392 U.S. at 20) (other citations omitted). 30 Finally, the People bear the burden of proving that an individual abandoned a gun independent from the illegal police conduct, and the People presented no evidence to support such a conclusion, so the Appellate Division's finding to the contrary was erroneous as a matter of law. See People v. Howard, 50 N.Y.2d 583, 593 (1980); People v. Torres, 115 A.D.2d 93, 99 (1st Dept. 1986) (courts should find abandonment "only in the clearest of cases"). There was no support in the record for the finding that Bilal's depositing the gun was a thoughtful, considered response to the police intrusion; rather, he rid himself of the contraband in reaction to the illegal police conduct. This Court and others have found in circumstances sirnilar to those here that a defendant has spontaneously abandoned contraband during a police pursuit, even if the disposal was not immediate or if it consisted of something other than simply dropping it on the ground. See, e.g., Howard, 50 .Y.2d at 593 (ruling that defendant had spontaneously reacted "to the necessity of evading his pursuers" when he discarded a gun only after he fled from the police by jumping a fence, running down an alley and into a basement); People v. Smalls, 83 .D.3d 1103 (2d Dept. 2011) (finding defendant handing gun to a companion after running away from police up several flights of stairs to be a spontaneous reaction to police pursuit); People v. J'vkCullough, 31 A.D.3d 812 (3d Dept. 2006) (suppressing cocaine defendant threw into a lake after being pursued by police down an alley and through neighboring backyards). Similarly here, Bilal's act of throwing the gun over a fence 31 while he was running was a spontaneous reaction to the police officers' continuous pursuit. Therefore, at a suppression hearing the People would be unlikely to meet their burden of proving that abandonment was a calculated act "independent" of and attenuated from the unlawful police conduct. Given these uncontested facts, Bilal has at least a colorable Fourth Amendment claim. D. This Court Should Reverse Appellant's Conviction and Remand for a New Trial; Or, at the Very Least, Remand for a Suppression Hearing. Because Bilal's attorney unreasonably failed to move for a suppression hearing that would certainly have been granted, and he was prejudiced by his attorney's failure, he is entitled to relief. Given the magnitude of counsel's prejudicial error, Bilal's conviction should be reversed and he should get a new trial, to be preceded by a suppression hearing. At the very least, his case should be remanded for a suppression hearing and, if he prevails, his indictment should be dismissed. The Supreme Court has recognized that "[c]ases involving Sixth Amendment deprivations [of the right to counsel] are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation." United States v. l\1orrison, 449 U.S. 361, 364 (1981); see also United States v. Carmichael, 216 F.3d 224, 227 (2000) (interpreting Morrison to require a remedy for a right-to-counsel violation "that as much as possible restores the defendant to the circumstances that would have existed had there been no constitutional error"). Our 32 State follows this principle. See People v. Wardlaw, 6 N.Y.3d 556, 559 (2006) (where defendant is left \vithout competent counsel, "the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole"). To that end, where a defendant actually has had the benefit of a suppression hearing, but where defense counsel was incompetent or absent, this Court has established that the proper remedy is to hold the case in abeyance pending a new, properly litigated suppression hearing. See Clermont, 22 N .3d 931; Wardlaw, 6 N.Y.3d 556 (citing People v. Slaughter, 78 N.Y.2d 485, 493 (199) and People v. Carracedo, 89 N.Y.2d 1059, 1061 (1997)). But where a defendant was entirely deprived of a suppression hearing, he is entitled to a greater remedy. See Lafler v. Cooper, 132 S.Ct. 1376, 1386 (2012) (the Supreme Court "has not followed a rigid rule that an otherwi.se fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue."). In Bilal's case, where his attorney inexcusably failed to move for a suppression hearing that would have been granted, and where he can show that he has at least a colorable Fourth Amendment claim, the only way to restore him to the position he would have occupied absent his attorney's error is to order a new trial, preceded by a suppression hearing. As the Supreme Court recently articulated in Lafler, effective assistance of counsel claims must be analyzed through the lens of "just results." The 33 analysis must focus on "the fairness and regularity of the processes that preceded [the trial], which caused the defendant to lose benefits he would have received in the ordinary course but for counsel's ineffective assistance." Lafler 132 S.Ct. at 1387-88 (omitting citations). A suppression hearing is a critical, investigatory stage of a defendant's case. See Gil, 285 A.D.2d at 13 (recognizing "the benefit of a reasonable opportunity for discovery, investigation and trial preparation" that comes from a suppression hearing). As this Court recognized in Oliveras, 21 N.Y.3d at 346, "[a]n attorney's strategy is shaped in significant part by the rcsu1ts of the investigation stage of the representation. Thus, '[a] defendant's right to representation does entitle him to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial."' (citing People v. Bennett, 29 N.Y.2d 462, 466 (1972); see Hinton v. Alabama, 134 S.Ct. at 1088 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.") (quoting Strickland, 466 U.S. at 690-01.) That is precisely the kind of effective assistance that Bilal was denied. Counsel inexcusably failed to gather facts relevant to the defense in preparation for, during, or after the suppression hearing. suppression hearing would almost certainly have provided valuable information that could have assisted in Bilal's defense. In contrast 34 to cases like Clermont, Slaughter, and Carracedo, in which a suppression hearing record existed for use at trial, in Bilal's case there were no relevant suppression records to review, consider, and incorporate into a trial or plea strategy. For instance, counsel could have gathered impeachment material and locked the People's witnesses into their testimony. This Court has recognized the importance of using impeachment material because "when used effectively, it 'may make the difference between conviction and acquittal' .... [and] impeachment evidence may be considered favorable to defendant even if it is not material to the defendant's case." People v. Garrett, 23 N.Y.3d 878, 886 (2014) (quoting U.S. v. Bagley, 473 U.S. 667, 6 7 6 (19 85)). 8 Bilal was denied the opportunity to gather impeachment and other investigative material, and merely holding a suppression hearing will not rectify that deprivation. J\1oreover, even an unsuccessful outcome at the hearing would have materially affected the proceedings. Bilal's attorney may have counseled him to plead guilty. The 8 \vhile a defendant has no constitutional right to discovery or impeachment material through a suppression hearing, the benefits lost because of an attorney's ineffectiveness need not be of a constitutional dimension in and of themselves; after all, a defendant has no constitutional right to a plea offer, but in requiring effective assistance of counsel during plea bargaining, the Supreme Court recognized the "reality that criminal justice today is for the most part a system of pleas." Laflef, 132 S.Ct. at 1388; see Waller v. Georgia, 467 U.S. 39, 49 (1984) (recognizing that there can be a material benefit to a suppression hearing other than suppression itself, by remanding for suppression hearing and ordering a new trial if the hearing "results in the suppression of material evidence not suppressed at the first trial, or in some material change in the positions of the parties.") (emphasis added). 35 People might have offered Bilal a more favorable plea. 9 At the very least, the information that emerged at the suppression hearing would have provided Bilal and his attorney with a better sense of the People's case and would have affected any plea negotiations. A final consideration militates in favor of a new trial for Bilal: the People will enjoy an unfair advantage during the suppression hearing. With the entire trial record before them, the People have the ability to tailor the suppression hearing to the trial testimony. This Court has recently warned of allowing the People a chance to re- present facts for consideration where the "People would benefit from implicit and explicit direction from the court about the weaknesses of their case, and so could tailor the presentation accordingly at the subsequent proceeding." People v. Kevin W., 22 N.Y.3d 287, 295 (2013). To prevent any windfall to the People, Bilal's conviction must be reversed so that he can occupy the position he would have been in absent counsel's errors. In sum, the remedy for counsel's deficiency should take into account all the various ways the deprivation of a l'vfapp hearing prejudiced Bilal. Even if he did not prevail at the :Mapp hearing, the hearing would have been incalculably valuable for its own sake. To that end, remitting for a suppression hearing only, without the benefit of a new trial or opportunity to plead guilty depending on the outcome of the 9 For a first felony offender, the sentencing range for criminal possession of a weapon in the second degree (Penal Law§ 265.03(3)) is 3.5 to 15 years. See Penal Law§ 70.02. 36 hearing, would not cure the prejudice Bilal suffered as a result of his counsel's inexcusable failure to seek a suppression hearing. Therefore, this Court should reverse Bilal's conviction and order a new trial, to be preceded by a suppression hearing, where he can be represented by competent counsel. At the very least, under both federal and state law, Bilal is entitled to a suppression hearing, as he has presented, at a minimum, a "colorable" basis for suppression. CONCLUSION FOR THE REASONS SET FORTH ABOVE, APPELLANT WAS DEPRIVED OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE CONVICTION SHOULD BE SET ASIDE AND A NEW TRIAL ORDERED, OR, AT THE VERY LEAST, HELD IN ABEYANCE PENDING THE OUTCOME OF A SUPPRESSION HEARING. ~'----··- Rachel T. Goldberg Of Counsel December 8, 2014 Respectfully submitted, ROBERTS. DEAN Center for Appellate Litigation 37 PIUNTING SPECIFICATIONS STATEMENT 1. Processing System: WordPerfect x4. 2. Typeface: Garamond. 3. Point Size: 14 point text; 12 point footnotes. 4. \Vord Count: 9,501 words (excluding table of contents, table of authorities, and appendices). 38