The People, Respondent,v.Rashid Bilal, Appellant.BriefN.Y.February 11, 2016Oral Argument of 15 minutes requested by RACHEL T. GOLDBERG Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2014-00252 RASHID BILAL, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT 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 RACHEL T. GOLDBERG rgoldberg@cfal.org Of Counsel June 15, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT BECAUSE APPELLANT HAS A COLORABLE SUPPRESSION CLAIM BASED ON THE FACTS ELICITED AT TRIAL, HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, AND THERE IS NO REASON THIS COURT CANNOT REVIEW APPELLANT’S CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 13 i TABLE OF AUTHORITIES Federal Cases Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 State Cases People v. Ayala, 75 N.Y.2d 422 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Benevento, 91 N.Y.2d 708 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Boodle, 47 N.Y.2d 398 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Caban, 5 N.Y.3d 143 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 People v. Cadle, 71 A.D.3d 689 (2d Dept. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Carver, 124 A.D.3d 1276 (4th Dept. 2015). . . . . . . . . . . . . . . . . . . . . . 4, 8 People v. Clermont, 22 N.Y.3d 931 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 People v. Concepcion, 17 N.Y.3d 192 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Evans, 16 N.Y.3d 571 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Garcia, 75 N.Y.2d 973 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Goodfriend, 64 N.Y.2d 695 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. LaFontaine, 92 N.Y.2d 470 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Rivera, 71 N.Y.2d 705 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 People v. Rodriguez, 98 N.Y.2d 93 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Romero, 91 N.Y.2d 750 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Rosa, 302 A.D.2d 231 (1st Dept. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ii People v. Stultz, 2 N.Y.3d 277 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 People v. Turner, 5 N.Y. 3d 476 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Williams, 7 N.Y.3d 15 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 State Statutes C.P.L. § 440.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 C.P.L. § 440.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C.P.L. § 470.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 iii COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : RASHID BILAL, : Defendant-Appellant. : ------------------------------------------------------------------------x PRELIMINARY STATEMENT Appellant submits this brief in reply to respondent’s brief [hereinafter “RB”], received by appellant on June 3, 2015. As discussed below, respondent’s arguments lack merit. REPLY ARGUMENT BECAUSE APPELLANT HAS A COLORABLE SUPPRESSION CLAIM BASED ON THE FACTS ELICITED AT TRIAL, HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, AND THERE IS NO REASON THIS COURT CANNOT REVIEW APPELLANT’S CLAIMS. As articulated in appellant Rashid Bilal’s initial brief, the current appeal presents two related questions: first, where a defendant’s attorney has inexcusably failed to make a motion for a suppression hearing (thus making out “prong one” 1 of an ineffective assistance of counsel claim), what is the threshold showing for prejudice that a defendant must demonstrate in order to be entitled to relief? And second, what is the proper remedy for a defendant who has been denied effective assistance of counsel under these circumstances? Bilal argues that, because he never had the chance to litigate the suppression issue due to counsel’s failures, he need only show that, based on available facts, he has a “colorable” argument for suppression. Having made that showing, Bilal maintains that the proper remedy is for this Court to reverse his conviction and remand for a suppression hearing, to be followed by a new trial. Respondent proffers three main counter-arguments: 1) that Bilal must show that he has a “reasonable probability” of winning a suppression hearing in order to show prejudice; 2) that, at most, Bilal is entitled only to a suppression hearing should he meet the threshold for prejudice; and 3) that this Court cannot review Bilal’s claims in any case. None of these arguments survive scrutiny. To begin, respondent’s assertion that Bilal can only prevail if he “demonstrates a reasonable probability that he would have prevailed at a suppression hearing” (RB 7; see RB 22, 51) (emphasis added) is founded on the false premise that the federal ineffectiveness prejudice standard controls New York ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (requiring defendant to show that “but for counsel’s unprofessional errors, 2 there is a ‘reasonable probability’ that the outcome of the proceedings would have been different”). In fact, this Court has repeatedly affirmed that New York’s distinct state prejudice standard is “somewhat more favorable to defendants” than the federal standard. People v. Turner, 5 N.Y. 3d 476, 480 (2005); see also People v. Caban, 5 N.Y.3d 143, 156 (2005) (noting that “our state standard thus offers greater protection than the federal test”). Under New York state law, “relief is . . . appropriate under our meaningful representation standard, which does not invariably require a strict showing of prejudice.” People v. Clermont, 22 N.Y.3d 931, 934 (2013). In urging this Court examine Bilal’s claims using the “reasonable probability” test, respondent seeks to repeat the error made by the trial court and the Appellate Division. As established in Bilal’s initial brief, neither caselaw nor basic fairness require Bilal to demonstrate that he “probably” would have won his suppression hearing; instead, they suggest a much lower prejudice bar under the circumstances (Appellant’s Brief [hereinafter “AB”] 20-23). While, as respondent points out, a defendant “is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success,” People v. Stultz, 2 N.Y.3d 277, 287 (2004) (see RB 21, 42), or where it is “clear” from the trial facts that the ultimate result would not have been different, People v. Evans, 16 N.Y.3d 571, 576 (2011) (see RB 21-22), neither does the 3 “close” standard articulated in People v. Clermont, 22 N.Y.3d 931 (2013) control here. As explained in Bilal’s main brief, he, unlike the defendant in Clermont who at least had the benefit of a suppression hearing, must rely solely on trial facts to make the case that he was prejudiced by his attorney’s failures (AB 21, 23-24, 34-35). Under such circumstances, a reduced threshold showing on the merits of the suppression issue—“colorable”—is appropriate.1 Respondent does not meaningfully address this dispositive factual distinction between Bilal’s case and defendant Clermont’s case. Instead, respondent makes the remarkable claim that Bilal is less deserving of relief than the defendant in Clermont because in that case “counsel’s errors left the record incomplete and confused” (RB 43). In Bilal’s case, respondent maintains, “the relevant facts were elicited at trial, and those facts are undisputed” so no suppression hearing is needed (RB 43). But that argument misperceives a fundamental unfairness in Bilal’s case: the only reason Bilal must rely on trial facts alone is because he was deprived of a suppression hearing to which everybody Judge (then Justice) Fahey recently suggested a similar standard in his dissenting1 opinion in a Fourth Department case where counsel failed to move for a suppression hearing after an allegedly illegal arrest: “the appropriate litmus test here is whether the motion at issue had more than little or no chance of success and, if so, whether there is no strategic or other legitimate explanation for the failure to bring that motion.” People v. Carver, 124 A.D.3d 1276, 1283 (4th Dept. 2015) (Fahey, J., dissenting) (citing Caban, 5 N.Y.3d at 152 and People v. Rivera, 71 N.Y.2d 705, 709 (1998)) (emphasis added). 4 agrees he was entitled, an error that exceeded the wrong that defendant Clermont suffered. To penalize Bilal further by resolving the merits of his claim without the full benefit of a proceeding dedicated to the suppression issue perpetuates the unfairness. It is true, as respondent repeatedly points out (RB 23, 24, 43), that Bilal does not contest the validity of the trial facts as they emerged at trial—but that is only because he was not granted any proceeding where different facts might have been elicited. It is quite possible that facts would have emerged at the suppression hearing that would have made it more likely—or perhaps less likely—that the gun would have been suppressed. In either case, it is entirely trial counsel’s fault that2 we do not know the answer and must take the trial facts as established. After all, and as respondent seems to ignore, a suppression hearing is a completely different kind of proceeding than a trial, with different rules of evidence, different fact finders, different goals, and different burdens. As this Court noted in People v. Ayala, 75 N.Y.2d 422, 429-30 (1990): the focus of suppression hearings is, typically, the propriety of certain challenged official conduct and the relationship between the unlawful official conduct, if any, and the evidence the defendant seeks to exclude. Thus, areas of importance to the substantive issues at trial may be inadequately—or not at all—explored. Therefore, respondent’s assertion that Bilal’s request for a suppression hearing is2 pointless (RB 23, 24, 43) has no merit. 5 Moreover, because no jury is present and the question of guilt or innocence is not at stake, defense counsel may pursue strategies that would be highly prejudicial to the client in other contexts, such as eliciting facts suggestive of the client’s guilt or withholding objection to prosecution testimony that might be harmful to the client’s position. See also, People v. Williams, 7 N.Y.3d 15, 30 (2006) (recognizing that a suppression hearing has different goals than a trial, and allowing the People to introduce new witnesses at a remanded suppression hearing because the additional witness “increased the likelihood that the motion to suppress would be decided correctly, based on the best available evidence of what really happened”); People v. Rosa, 302 A.D.2d 231, 231-32 (1st Dept. 2003) (implicitly acknowledging the different purposes of trial and suppression testimony, and different motives attorneys may have for eliciting testimony at the different proceedings). Respondent also incorrectly claims that a “colorable” standard would open the floodgates to litigation because it “would require a do-over if an appellate counsel could imagine a single, straight-faced argument that trial counsel failed to raise” (RB 42). Ruling in Bilal’s favor would merely crystalize what this Court has previously implied: that the “colorable” standard is appropriate in the suppression context where no hearing was held at all. See People v. Rivera, 71 N.Y.2d 705,3 709 (1988); People v. Garcia, 75 N.Y.2d 973 (1990) (discussed at AB 21-22). In Respondent does not seriously dispute that Bilal has a colorable suppression claim. 3 6 any case, several safeguards ensure that a “colorable” standard will not lead to countless “do-overs.” First, defendants would still have to clear the high hurdle of the first prong of an ineffective assistance of counsel claim: that counsel’s performance was so deficient that his or her conduct fell “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. This requirement alone winnows potential claims; most defense attorneys would have filed a motion for a suppression hearing in a simple possession case like this one. In other cases, defense attorneys may have strategic reasons for not pursuing a suppression hearing. Second, defendants would have to show that the lack of a suppression hearing affected the “fairness of the process as a whole” under the second prong of the ineffective assistance of counsel claim. People v. Benevento, 91 N.Y.2d 708, 713-14 (1998). There will be cases in which the lack of a suppression hearing is harmless. Third, defendants still must show that, based on trial facts, the suppression issue is “colorable.” As explained above, this requires something more than “little or no chance of success” on the merits of the suppression issue. Stultz, 2 N.Y.3d at 287. Bilal can certainly meet this threshold, but respondent’s assertion that this standard would open the floodgates and apply to every appellant greatly exaggerates the issue. Contrary to respondent’s arguments, protecting the courts from 7 unnecessary litigation is, among other reasons, why the proper remedy is a vacatur of Bilal’s conviction and a suppression hearing followed by a new trial. The remedy here should be both just and uncomplicated. As argued in Bilal’s initial brief, a suppression hearing followed by a new trial is the most fair remedy because it is the only way to return him to the position he would have been in absent counsel’s prejudicial error (AB 32-37). But what is more, leaving the remedy an open question will force lower courts to parse out whether the appropriate remedy is only a suppression hearing or a suppression hearing followed by a new trial. The cleanest and most fair remedy for defendants like Bilal whose attorneys abdicated their duty to file a completely straightforward and critical motion for a suppression hearing that would have been granted is to vacate the conviction and remand for a new trial. Moreover, if this Court merely holds4 the conviction in abeyance pending a suppression hearing, further litigation in the Appellate Division would undoubtedly ensue anyway, because Bilal could still appeal legal and factual errors to the Appellate Division. Equally meritless is respondent’s claim that Bilal’s requested remedy is unpreserved because he did not ask for a suppression hearing at the C.P.L. § 440.10 stage (RB 44-45). At that stage, a suppression hearing was not an In his dissent in Carver, 124 A.D.3d at 1284, Judge Fahey endorsed this remedy, noting4 that he would have granted defendant a new trial because of his attorney’s failure to move for a suppression hearing. 8 appropriate remedy. Bilal brought a motion pursuant to C.P.L. § 440.10(1)(h), asking the court to vacate his conviction due to ineffective assistance of counsel based on the written submissions, or, if the court could not rule in Bilal’s favor, to order a hearing pursuant to C.P.L. § 440.30(5) (A7). Depending on what the court found, a suppression hearing could have become appropriate. But the question directly before the 440 court was counsel’s ineffectiveness. Finally, Bilal relies on his initial brief regarding the merits of the colorable suppression claim, but some of respondent’s arguments about the underlying claim warrant a response. Respondent spends pages contesting the validity of5 Bilal’s assertion that the 911 call was anonymous (RB 28-30), and the inference that he did not know that he was running from police (RB 36-38). There was no evidence adduced at trial to suggest anything other than that the 911 call was anonymous and that Bilal did not know he was running from police, but respondent’s belaboring these points supports Bilal’s argument: that the information that emerged at trial did not focus on issues that would have been critical in deciding the suppression issue. At trial, neither side pressed the point of whether or not police had reasonable suspicion to pursue Bilal—or the concomitant relevant questions of whether the 911 call was anonymous or Respondent does not contest Bilal’s assertion that, because his attorney improperly5 failed to pursue a suppression hearing, Bilal deserves every reasonable inference based on the trial facts (AB 23-24). 9 whether Bilal knew he was running from police—because that was not the focus of the proceeding. That respondent spends so much time disputing Bilal’s inferences regarding these two issues in particular demonstrates that they are important and relevant facts that were not sufficiently developed at the trial. If respondent must expend pages of argument debating the appropriate inferences regarding the anonymity of the 911 caller and Bilal’s perceived knowledge of his pursuers, then the suppression issue must be at least colorable. 6 Further, respondent repeats the error made by the Appellate Division and ignores the fact that it is the People’s high burden to demonstrate that a defendant has voluntarily surrendered his Fourth Amendment rights by disposing of contraband in an act independent of the illegal police intrusion. Given the Respondent argues that the police had reasonable suspicion to forcibly stop Bilal at the6 outset and, in the alternative, that Bilal’s flight elevated a level-two right to inquire into a level- three right to pursue (RB 6, 25-31). However, the 440 court found, and the prosecutor below did not even contest, that the officers initially had only a level-two common law right to inquire (A42-43; A 58-60). Section 470.15(1) of the C.P.L. “provides that [this Court] can review only errors or defects that ‘may have adversely affected the appellant’ in the criminal court.” People v. LaFontaine, 92 N.Y.2d 470, 473-74 (1998); People v. Concepcion, 17 N.Y.3d 192, 195 (2011) (C.P.L. § 470.15(1) bars the Court of Appeals “from affirming a judgment, sentence, or order on a ground not decided adversely to the appellant by the trial court”). Accordingly, where the lower court does not rule on an issue, this Court is without authority to determine whether a hypothetical ruling adverse to the appellant would have been correct. Here, the lower court erroneously ruled that the police had a level-two right to inquire, which was elevated to a level- three right to stop when Bilal ran away. It was never alerted to nor did it reach the prosecution’s current claim that the police had a level-three right to stop Bilal from the start. Because this alternative argument was “not ruled upon[] by the trial court,” LaFontaine, 92 N.Y.2d at 474, such a hypothetical ruling did not “adversely affect[] the appellant,” and cannot be passed upon here. Accord People v. Romero, 91 N.Y.2d 750, 753-54 (1998); People v. Goodfriend, 64 N.Y.2d 695, 697-98 (1984). 10 presumption that individuals will generally choose to preserve their constitutional rights, and given that Bilal did not have a chance to properly litigate this issue at a suppression hearing, this Court should give him the benefit of all factual inferences. In any event, Bilal discarded the gun as a “spontaneous” reaction to the illegal police chase, and the People introduced no evidence to the contrary. See People v. Rodriguez, 98 N.Y.2d 93, 98-99 (2002) (during a police pursuit, defendant pulled over and dropped gun out of car window); compare People v. Cadle, 71 A.D.3d 689, 689 (2d Dept. 2010) (suppressing gun discarded during illegal pursuit) with People v. Boodle, 47 N.Y.2d 398, 404 (1979) (finding that evidence was not tainted by illegal police seizure where the defendant agreed to enter a police car and then threw a gun out the window as the car drove away, because the defendant’s act was not a “spontaneous reaction to a sudden and unexpected confrontation with the police”). Here, Bilal realized that he was being chased by individuals both on foot and by car who were quickly catching up to him, and because he could not evade his pursuers much longer, he discarded the contraband. At the very least, then, Bilal has a colorable argument that he would have prevailed on this issue at a suppression hearing. CONCLUSION For the reasons advanced in appellant’s initial brief as well as those above, Bilal’s conviction should be reversed and a new trial ordered, to be preceded by a 11 suppression hearing. In the alternative, this case should be remanded to the Supreme Court for a suppression hearing. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation ___________________________ Rachel T. Goldberg Of Counsel June 15, 2015 12 PRINTING SPECIFICATIONS STATEMENT 1. Processing System: WordPerfect x4. 2. Typeface: Garamond. 3. Point Size: 14 point text; 12 point footnotes. 4. Word Count: 2,872 words (excluding table of contents, table of authorities, and appendices). 13