The People, Respondent,v.Rashid Bilal, Appellant.BriefN.Y.February 11, 2016CORRECTED COPY APL-2014-00252 To be argued by PHILIP MORROW (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RASHID BILAL, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov PHILIP MORROW ASSISTANT DISTRICT ATTORNEY Of Counsel JUNE 2, 2015 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 SUMMARY OF ARGUMENT ........................................................................................... 5 THE EVIDENCE AT TRIAL ............................................................................................ 7 The People’s Case ................................................................................................. 7 The Defense Case ............................................................................................... 13 Verdict and Sentencing ....................................................................................... 13 THE POST-JUDGMENT PROCEEDINGS................................................................. 13 Defendant’s CPL 440.10 Motion ...................................................................... 13 The CPL 440.10 Decision .................................................................................. 15 THE APPELLATE DIVISION DECISION ................................................................. 16 POINT THE COURTS BELOW PROPERLY DENIED DEFENDANT’S POST-CONVICTION MOTION ............................ 17 A. The standard of review for post-conviction claims of ineffective assistance of counsel................................................................................ 18 B. Because any motion to suppress the gun would have failed, the sole alleged error by counsel did not prejudice defendant or undermine the fairness of the proceedings ..................................................................... 22 1. The 911 call, combined with the officers’ observations on the scene, provided the police with reasonable suspicion to pursue defendant. ................................................................................................. 25 2. Even if the 911 call justified only a level-two approach and inquiry, defendant’s immediate flight upon the officers’ approach elevated their suspicions and authorized the pursuit. .................................................. 32 3. The recovery of the gun was also proper under the independent doctrine of abandonment. ...................................................................... 38 4. Defendant does not have a “colorable” claim as it is clear that he would not have prevailed at a suppression hearing. ............................ 42 5. Defendant’s claim that he is entitled to a hearing regardless of the merits of his suppression claim is unpreserved and without merit. ........................................................................................... 44 C. Even if this Court determines that defendant was prejudiced by defense counsel’s failure to request a suppression hearing, the proper remedy is not to reverse defendant’s conviction but to remand the case for a suppression hearing. ....................................................................... 47 CONCLUSION ................................................................................................................... 52 -ii- TABLE OF AUTHORITIES FEDERAL CASES Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................ 45, 48 Florida v. J.L., 529 U.S. 266 (2000) ............................................................................... 27-30 Gray v. Netherland, 518 U.S. 152 (1996) .......................................................................... 45 Illinois v. Wardlow, 528 U.S. 119 (2000) ........................................................................... 33 Kimmelman v. Morrison, 477 U.S. 365 (1986) ................................................................. 19 Lafler v. Cooper, 132 S.Ct. 1376 (2012) ....................................................................... 48-49 McKenzie v. Greene, No. 05 Civ. 9420 (LTS), 2008 WL 1944032 (S.D.N.Y. 2008).............................................................................. 24 Navarette v. California, 134 S.Ct. 1683 (2014) ............................................................ 29-30 Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 19, 46 United States v. Caputo, 808 F.2d 963 (2d Cir. 1987) ..................................................... 20 United States v. Maguire, 600 F.2d 330 (1st Cir. 1979) ................................................... 24 United States v. Matos, 905 F.2d 30 (2d Cir. 1990) ......................................................... 19 United States v. Mechanik, 475 U.S. 66 (1986) ................................................................. 49 STATE CASES Comm. v. Comita, 441 Mass. 86 (2004) ............................................................................ 20 People v. Acevedo, 222 A.D.2d 217 (1st Dep’t 1995) ..................................................... 34 People v. Ashley, 71 A.D.3d 1286 (3rd Dep’t 2010), aff’d, 16 N.Y.3d 725 (2011) ........................................................................................... 45 People v. Atwater, 12 A.D.3d 333 (1st Dep’t 2004) ........................................................ 40 People v. Baldi, 54 N.Y.2d 137 (1981) ............................................................................... 20 People v. Banch, 80 N.Y.2d 610 (1992) ....................................................................... 47-48 -iii- People v. Batista, 88 N.Y.2d 650 (1996) ...................................................................... 25, 34 People v. Beckett, 88 A.D.3d 898 (2nd Dep’t 2011)........................................................ 35 People v. Benevento, 91 N.Y.2d 708 (1998) ......................................................... 20-21, 46 People v. Benjamin, 51 N.Y.2d 267 (1980) .................................................. 6, 25-27, 33-34 People v. Bilal, 118 A.D.3d 448 (1st Dep’t 2014) ........................................................ 4, 38 People v. Boodle, 47 N.Y.2d 398 (1979) .................................................................. 6, 38-40 People v. Brown, 25 N.Y.3d 973 (2015) ............................................................................ 23 People v. Burton, 6 N.Y.3d 584 (2006) ............................................................................. 15 People v. Byrd, 304 A.D.2d 490 (1st Dep’t 2003) ...................................................... 33, 38 People v. Caban, 5 N.Y.3d 143 (2005) .......................................................................... 20-21 People v. Cantor, 36 N.Y.2d 106 (1975) ....................................................................... 5, 26 People v. Carracedo, 89 N.Y.2d 1059 (1997) .................................................................... 47 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ................................................................... 38 People v. Chestnut, 51 N.Y.2d 14 (1980) .......................................................................... 34 People v. Chipp, 75 N.Y.2d 327 (1990) ............................................................................. 45 People v. Cintron, 304 A.D.2d 454 (1st Dep’t 2003) ................................................. 32, 34 People v. Clermont, 22 N.Y.3d 931 (2013) ........................................................... 17, 43, 48 People v. Collado, 72 A.D.3d 614 (1st Dep’t 2010) ............................................. 33-34, 37 People v. Copicotto, 50 N.Y.2d 222 (1980) ...................................................................... 45 People v. De Bour, 40 N.Y.2d 210 (1976) ............................................................ 25-26, 34 People v. Evans, 16 N.Y.3d 571 (2011) ............................................................................. 21 People v. Evans, 201 A.D.2d 882, aff’d, 83 N.Y.2d 934 (1994) ..................................................................................... 24, 27 People v. Fields, 171 A.D.2d 244 (1st Dep’t 1991) .......................................................... 40 -iv- People v. Garcia, 75 N.Y.2d 973 (1990) ................................................................ 21, 42, 44 People v. Gayle, 168 A.D.2d 201 (1st Dep’t 1990) .......................................................... 45 People v. Geaslen, 54 N.Y.2d 510 (1981).......................................................................... 48 People v. Givens, 237 Ill.3d 311, 331 (2010) .................................................................... 20 People v. Gruden, 42 N.Y.2d 214 (1977) .......................................................................... 46 People v. Henry, 95 N.Y.2d 563 (2000) ............................................................................. 20 People v. Hollman, 79 N.Y.2d 181 (1992) .............................................................. 6, 23, 41 People v. Howard, 50 N.Y.2d 583 (1980) ......................................................................... 40 People v. Huston, 203 A.D.2d 200 (1st Dep’t 1994) ................................................. 28, 45 People v. Johnson, 37 A.D.3d 363 (1st Dep’t 2007) ........................................................ 48 People v. Johnson, 83 N.Y.2d 831 (1994) ......................................................................... 46 People v. Jones, 85 N.Y.2d 998 (1995) ........................................................................ 28, 45 People v. Kevin W., 22 N.Y.3d 287 (2013) .................................................................. 49-50 People v. Lacy, 104 A.D.3d 422 (1st Dep’t 2013) ................................................ 32-33, 37 People v. Layou, 114 A.D.3d 1195 (4th Dep’t 2014) ....................................................... 48 People v. Leung, 68 N.Y.2d 734 (1986) ............................................................................. 33 People v. Major, 96 A.D.3d 677 (1st Dep’t 2012) ............................................................ 48 People v. Martinez, 80 N.Y.2d 444 (1992) ............................................................ 25, 33, 39 People v. Massillon, 289 A.D.2d 103 (1st Dep’t 2001), habeas granted on other ground, Massillon v. Conway, 574 F.Supp.2d 381 (S.D.N.Y. 2008) ............................................................................. 22 People v. Matthews, 27 A.D.3d 1115 (4th Dep’t 2006) .................................................. 22 People v. McCullough, 31 A.D.3d 812 (3rd Dep’t 2006) ........................................... 40-41 People v. McGee, 20 N.Y.3d 513 (2013) ........................................................................... 21 -v- People v. McKinley, 101 A.D.3d 1747 (4th Dep’t 2012) ................................................ 37 People v. Mendoza, 82 N.Y.2d 415 (1993) ....................................................................... 46 People v. Michimani, 115 A.D.3d 528 (1st Dep’t 2014) .................................................. 34 People v. Montilla, 268 A.D.2d 270 (1st Dep’t 2000) ................................................ 32, 34 People v. Moore, 6 N.Y.3d 496 (2006) ............................................................. 27-28, 33-34 People v. Peterkin, 151 A.D.2d 407 (1st Dep’t 1989), aff’d, 75 N.Y.2d 985 (1990) ........................................................................................... 46 People v. Pines, 99 N.Y.2d 525 (2002) .............................................................. 6, 23, 33, 35 People v. Pitman, 102 A.D.3d 595 (1st Dep’t 2013) ............................................ 33, 36, 38 People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) ................................................. 6, 38-39 People v. Reyes, 83 N.Y.2d 945 (1994) ............................................................................. 32 People v. Riddick, 70 A.D.3d 1421 (4th Dep’t 2010) ...................................................... 35 People v. Rivera, 71 N.Y.2d 705 (1988) ...................................................................... 21, 44 People v. Rivera, 84 A.D.3d 636 (1st Dep’t 2011) ........................................................... 27 People v. Satterfield, 66 N.Y.2d 796 (1985) ................................................................ 19, 43 People v. Sierra, 83 N.Y.2d 928 (1994) .......................................................................... 6, 25 People v. Slaughter, 78 N.Y.2d 485 (1991) ....................................................................... 47 People v. Smalls, 292 A.D.2d 213–14 (1st Dep’t 2002)............................................. 31, 41 People v. Smalls, 83 A.D.3d 1103 (2nd Dep’t 2011) ....................................................... 41 People v. Stultz, 2 N.Y.3d 277 (2004) .................................................................... 21, 42, 46 People v. Surowka, 103 A.D.3d 985 (3rd Dep’t 2013) .................................................... 22 People v. Thompson, 21 N.Y.3d 555 (2013) .................................................................... 21 People v. Walker, 115 A.D.3d 889 (2nd Dep’t 2014) ...................................................... 22 People v. Ward, 201 A.D.2d 292 (1st Dep’t 1994) ........................................................... 37 -vi- People v. Wardlaw, 6 N.Y.3d 556 (2006) .......................................................................... 47 People v. Wharton, 53 Cal.3d 522 (1991) .......................................................................... 20 People v. White, 117 A.D.3d 425 (1st Dep’t 2014) .............................................. 33-34, 37 People v. Woods, 98 N.Y.2d 627 (2002) ............................................................................. 6 Young v. United States, 56 A.3d 1184 (D.C. 2012) ......................................................... 20 FEDERAL CONSTITUTIONAL PROVISIONS Fourth Amendment ................................................................................................. 19-20, 39 Sixth Amendment ................................................................................................................. 49 STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS CPL 240.20 ............................................................................................................................ 45 CPL 440.10 .......................................................................................... 1, 3-4, 7, 13, 15, 43-45 CPL 440.10(1)(h) .................................................................................................................. 18 CPL 470.05(2) ....................................................................................................................... 45 CPL 710.30 ............................................................................................................................ 45 Penal Law § 265.03(3) ........................................................................................................ 1, 3 OTHER AUTHORITIES Al Baker and J. David Goodman, Gunplay Rises in New York, Reviving Issue for de Blasio, N.Y. TIMES, June 1, 2015 .......................................................................... 28 Kamins, New York Search and Seizure, § 2.04 (2)(f) ...................................................... 35 -vii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RASHID BILAL, Defendant-Appellant. CORRECTED BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, Rashid Bilal appeals from an order of the Appellate Division, First Department, entered on June 15, 2014. That order affirmed a December 15, 2010 judgment of the Supreme Court, New York County (Robert M. Stolz, J.), convicting defendant, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), as well as an August 9, 2013 order, of the same court, which denied defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10. Defendant was sentenced to a determinate term of five years in prison to be followed by two and one-half years of post-release supervision. Defendant was released from prison on February 27, 2015, and he is currently serving the post-release supervision component of his sentence. INTRODUCTION On the evening of December 27, 2008, Officer Richard Pengel and three fellow officers patrolled the 32nd Precinct in an unmarked Chevy Impala. The officers wore plainclothes. At approximately 9:30 p.m., the officers responded to a radio run indicating that a 911 caller had reported gunfire in the vicinity of 150th Street and Macombs Place. The 911 caller described the shooter as a black man who was wearing a black bubble jacket. Given their familiarity with the area, the officers concluded that the perpetrator might try to leave the scene by using the subway station at 149th Street and Seventh Avenue. Accordingly, Pengel drove the Impala to that location to see if there was anyone present who matched the description relayed in the radio run. Less than five minutes after the 911 call and within a block of the location where the shots were fired, the officers saw defendant and Matthew Taylor emerge onto Seventh Avenue from the entrance to the Dunbar Houses. Taylor, a black man, was wearing a black bubble jacket. Defendant, too, was a black man wearing a bubble jacket, except that his was gray rather than black. Lieutenant O’Neill called out to the two men, “Hey buddy come here.” Taylor stopped walking, but defendant immediately fled. Defendant ran south down Seventh Avenue and then turned right onto West 149th Street. Pengel drove after defendant, sounding the siren on his car. Other officers chased defendant on foot. During the chase, defendant crossed from one side of 149th Street to the other, passing in front of Pengel’s Impala in the process. When defendant -2- reached a construction site that was sealed off from the street by a wooden fence and overhead sheet metal, he climbed up the fence and threw down into the construction site a black object he had in his right hand. After discarding the object, defendant continued to run down 149th Street. Defendant eventually stopped running, and Officer Pengel apprehended him. From inside the construction site where Pengel had observed defendant discard a black object, the police recovered a black .38 caliber revolver. The revolver was loaded. By New York County Indictment Number 6358/2008, filed on January 16, 2009, a grand jury charged defendant with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]). On November 18, 2010, defendant proceeded to trial before the Honorable Robert Stolz and a jury. On November 22, 2010, the jury convicted defendant as charged. On December 15, 2010, Justice Stolz sentenced defendant as noted above. More than two years after defendant was sentenced, he moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging ineffective assistance of trial counsel. Specifically, defendant contended that his attorney provided deficient representation because he did not move to suppress the gun. Relying solely on the trial record, defendant argued that he was prejudiced because he would have prevailed at a suppression hearing if counsel had moved for one. In a written decision dated August 9, 2013, Justice Stolz denied defendant’s CPL 440.10 motion. While finding no strategic basis for counsel’s failure to move to suppress the gun, the court determined -3- that, based on the undisputed evidence adduced at trial, the seizure of the gun was lawful. The court concluded, therefore, that defendant was not adversely impacted by counsel’s omission. On October 31, 2013, the Honorable Rolando T. Acosta of the Appellate Division, First Department, granted defendant’s application for leave to appeal from the denial of his CPL 440.10 motion. Defendant’s direct appeal was consolidated with his appeal from the order denying his CPL 440.10 motion. In that consolidated appeal, defendant again argued that his trial attorney provided ineffective assistance by failing to move for a suppression hearing. Defendant also contended that his sentence was excessive and should be reduced in the interest of justice. On June 5, 2014, the Appellate Division unanimously affirmed defendant’s conviction. People v. Bilal, 118 A.D.3d 448 (1st Dep’t 2014). In particular, while agreeing with Justice Stolz that there was no strategic justification for defense counsel’s failure to move to suppress the gun, the Appellate Division held that counsel’s error “did not cause defendant any prejudice under the state or federal standards.” Id. at 448–49. The Appellate Division explained that “the undisputed material facts” showed that defendant “would not have prevailed on a suppression motion,” and that the suppression issue in this case was not close. Id. Finally, the Appellate Division declined to reduce defendant’s sentence in the interest of justice. Id. at 449. On September 25, 2014, a Judge of this Court granted defendant’s application for leave to appeal to the Court of Appeals. -4- Before this Court, defendant argues that he was prejudiced by counsel’s failure to file a motion to suppress, alleging that a “‘colorable’ basis existed for suppression of the gun.” SUMMARY OF ARGUMENT On appeal, defendant argues that his trial counsel’s zealous advocacy suffered from just one defect: counsel failed to move to suppress the gun that defendant discarded during his flight from the police. Relying on the undisputed facts adduced at trial, defendant argues that he would have prevailed on a suppression motion if one had been made. As the courts below recognized, however, this claim lacks merit: the police pursuit of defendant was justified by reasonable suspicion, and, in any event, defendant’s decision to abandon the gun during the case was a calculated and independent act. Indeed, as the Appellate Division remarked, the suppression issue in this case was not a “close” one. In that regard, an informant called 911 to report a shooting, and the caller provided the location and a description of the perpetrator. Police officers encountered defendant and Matthew Taylor within a block of the crime scene and within five minutes of the shooting. Both men were African-Americans wearing bubble jackets, matching the general description of the perpetrator. Thus, at the time the police approached defendant and Taylor, they already had reasonable suspicion justifying a level-three pursuit and stop, or, at the very least, a founded suspicion of criminality justifying a level-two inquiry. See People v. Cantor, 36 N.Y.2d 106, 112–13 (1975); -5- People v. Benjamin, 51 N.Y.2d 267, 270 (1980). Then, when one of the officers called out to the two men, defendant started running. As the lower courts found, defendant’s immediate flight elevated the officers’ suspicions and entitled them to pursue. See People v. Pines, 99 N.Y.2d 525, 526–27 (2002); People v. Woods, 98 N.Y.2d 627, 628– 29 (2002). Thus, the police lawfully recovered the gun that defendant discarded during the lawful pursuit. See People v. Ramirez-Portoreal, 88 N.Y.2d 99, 110 (1996); People v. Sierra, 83 N.Y.2d 928, 930 (1994). Further, during the pursuit, defendant made a calculated decision to discard the loaded revolver in an area where it would be particularly difficult for the police to recover. In fact, defendant climbed a fence in order to throw the gun into a closed-off construction site. Hence, defendant’s decision to abandon the gun was plainly not a spontaneous reaction to the pursuit. Instead, it was an independent, voluntary act. Thus, as the Appellate Division also concluded, the recovery of the gun was also lawful under the doctrine of abandonment. See People v. Boodle, 47 N.Y.2d 398, 404 (1979). Moreover, whether the information available to the police provided them with reasonable suspicion and whether defendant’s decision to abandon the gun was a calculated act are mixed questions of law and fact. Thus, since there is record support for the Appellate Division’s findings, this Court has no power to review defendant’s suppression claims. See Sierra, 83 N.Y.2d at 929; People v. Hollman, 79 N.Y.2d 181, 193–94 (1992). -6- Finally, contrary to defendant’s claims, he is not entitled to any relief on his CPL 440.10 motion unless he demonstrates a reasonable probability that he would have prevailed at a suppression hearing. Because defendant failed to do so, the order of the Appellate Division should be affirmed. THE EVIDENCE AT TRIAL The People’s Case On the evening of December 27, 2008, Police Officer RICHARD PENGEL was on anticrime patrol in the 32nd Precinct in Northern Manhattan (A68–A69, A92 [Pengel: 120–21, 144]).1 Pengel drove an unmarked, black Chevy Impala, and he was accompanied in the car by Lieutenant O’Neill and Officers Mansfield and Matos (A70, A92 [Pengel: 122, 144]). Officer Pengel was wearing blue jeans, a blue hooded sweatshirt, and a green vest; the other officers wore similar “plainclothes attire” (A91– A92 [Pengel: 143–44]). The officers rode in an unmarked car and dressed in plainclothes “[s]upposedly” to prevent people from identifying them as police (A92 [Pengel: 144]). However, civilians often approached Pengel and presumed he was a police officer “based on the vehicle,” and because he and his colleagues were in the same Chevy Impala “in the same area” five days per week (A112–A13 [Pengel: 164– 65]). 1 Parenthetical references designated as “A” are to the Defendant’s Appendix. -7- That evening, video cameras located at 26 Macombs Place and 30 Macombs Place recorded footage (People’s Exhs. 6 and 7 [videos]; Exhs. 11 and 12 [stipulations that Exhibits 6 and 7 were exact copies of recordings made on 12/27/08]). The video footage showed two men, who resembled defendant and Matthew Taylor, walking toward 26 Macombs Place. Both men appeared to be wearing black bubble jackets. The man who resembled defendant pulled something out of his pocket and extended his arm, after which the video showed a blur of people running away. The two men then turned onto 150th Street and into the Dunbar Houses (People’s Exhs. 6 and 7). At 9:27 p.m., the officers received a radio “report from a 911 call” of shots fired in the vicinity of 150th Street and Macombs Place (A69–A70 [Pengel: 121–22]). The radio run described the shooter as a black man “wearing a black bubble jacket” (A99 [Pengel: 151]). At that point, the officers were near 145th Street and Seventh Avenue, and they made a collective decision to go to the Dunbar Houses on Seventh Avenue between 150th and 149th Streets (A69–A70 [Pengel: 121–22]). The officers, reasoning that the perpetrators might pass through that area in order to leave the scene as there was a subway station at 149th Street and Seventh Avenue, went to the location to see if they saw “anybody that fit the description” (A70–A71 [Pengel: 122–23]). Pengel parked the Impala in front of an entrance to the subway station that was, itself, almost directly in front of the entrance to the Dunbar Houses (A71 [Pengel: 123]). “[W]ithin five minutes after the call” and “within a square block” of the location where the radio run reported shots fired, Pengel and the other officers saw defendant -8- and Matthew Taylor walking through the entrance to the Dunbar Houses (A71–A72, A79–A82, A94–A99 [Pengel: 123–24, 131–34, 146–51]; People’s Exh. 2 [photograph of complex entrance]).2 Taylor matched the description of the shooter: he was a black man wearing a black bubble jacket (A99–A100 [Pengel: 151–52]). Defendant, who was also a black man, was wearing a gray bubble jacket (A72, A86, A99–A100 [Pengel: 124, 138, 151–52]; People’s Exh. 4 [defendant’s jacket]). The officers decided to approach defendant and Taylor to inquire whether they had heard the shots (A72, A95, A99 [Pengel: 124, 147, 151]). Officer Pengel drove the car and stopped it directly behind defendant and Taylor. Lieutenant O’Neill got out of the car (A72, A95 [Pengel: 124, 147]). O’Neill said to defendant and Taylor, “[H]ey buddy come here” (A73, A95–A97 [Pengel: 125, 147– 49]). Taylor stopped immediately (A73, A96 [Pengel: 125, 148]). However, defendant “t[ook] off” (A73, A95–A97 [Pengel: 125, 147–49]). Lieutenant O’Neill then shouted, “[H]e is running; he is running” (A73, A97 [Pengel: 125, 149]). Officers Mansfield and Matos pursued defendant on foot (A73–A74, A96–A97 [Pengel: 125–26, 148–49]). Pengel followed defendant in the unmarked car: he drove south and made a right turn onto 149th Street (A73, A104–A105 [Pengel: 125, 156–57]). As Officer Pengel pursued defendant, he “intermittently” hit the car’s air horn which “gave a siren, like whoop, whoop sound” (A110–A111 [Pengel: 162–63]). Defendant crossed from the 2 Officer Pengel identified defendant in court (A72 [Pengel: 124]). -9- north side of the street to the south side, passing in front of Pengel’s car, and continued to run west (A73–A74, A105 [Pengel: 125–26, 157]). One of the buildings on the street was under construction, and a wooden fence with sheet metal overhead prevented access to the construction site from the street (A74, A79–A80 [Pengel: 126, 131–32]; People’s Exh. 3A [photograph of construction site]). When defendant reached the construction site, he stopped, grabbed the top of the wooden fence with his left hand, and pulled himself up the fence (A74–A75, A83–A84 [Pengel: 126–27, 135–36]). Defendant had a black object in his right hand, which he threw over the fence (A75, A83, A107 [Pengel: 127, 135, 159]). After discarding the object, defendant started to run down 149th Street again (A75, A106 [Pengel: 127, 158]). Officer Pengel continued to follow defendant and “ordered him to stop numerous times from the vehicle” (A75, A108 [Pengel: 127, 160]). Meanwhile, Officer Matos reached the construction site and stopped in front of the fence (A108–A109 [Pengel: 160–61]). Defendant “finally stopped running” in front of 226 West 149th Street (A75 [Pengel: 127]). Officer Pengel got out of his car, with his police shield visible and his radio clipped to his pocket (A75, A109–A110 [Pengel: 127, 161–62]). A few seconds later, Officer Mansfield arrived on the scene (A75, A108–A109 [Pengel: 127, 160–61]). Defendant refused to get on the ground or put his hands behind his back (A109 [Pengel: 161]). Once Pengel had defendant on the ground, Officer Mansfield handcuffed him (A109–A110 [Pengel: 161–62]). The officers recovered defendant’s bubble jacket, -10- which was gray on one side and black on the other (A87–A88, A100 [Pengel: 139–40, 152]; People’s Exh. 4 [defendant’s jacket]). Officer Pengel called the Emergency Services Unit to open the gate to the construction site (A84, A103 [Pengel: 136, 155]; People’s Exh. 3B [photograph of open gate]). Once the gate was open, Officers Mansfield and Pengel entered the construction site, and Pengel noticed a firearm on the ground (A78, A84–A86, A88–A89, A103 [Pengel: 130, 136–38, 140–41, 155]; People’s Exhs. 3C and 3D [photographs of the firearm], and 5 [firearm]). The gun was black with a wooden handle; it appeared to be “old” and “somewhat beat up” (A88–A89 [Pengel: 140–41]). One of the officers called the Evidence Collection Team, and Officer Mansfield remained on the scene to safeguard the gun (A104 [Pengel: 156]). Officer ROBERT SIRIGNANO of the Manhattan North Evidence Collection Team responded to the construction site (A171–A173 [Sirignano: 223–25]).3 Sirignano photographed the scene and swabbed the handle, hammer, and cylinder release of the gun for DNA (A172–A175, A183 [Sirignano: 224–27, 235]; People’s Exhs. 3A–3D [photographs]). Next, Sirignano performed a chemical test to check the gun for fingerprints, and no latent prints were found (A175–A176 [Sirignano: 227–28]). That result was not unusual as the DNA swabs have the effect of essentially “removing any 3 Nobody touched the revolver or the area around it before Officer Sirignano arrived on the scene (People’s Exh. 13 [stipulation]). -11- type of fingerprints” (A176, A183–A184 [Sirignano: 228, 235–36]). Sirignano also checked the gun for ammunition; it contained four empty shell casings and one live round (A175 [Sirignano: 227]). Sirignano sent the gun and ballistics evidence to the NYPD lab (A172–A173 [Sirignano: 224–25]). STEPHEN DEADY, a Firearms Technical Leader with the NYPD, testified as an expert in firearms identification and ballistics analysis (A143–A147 [Deady: 195– 99]). The firearm that the police recovered from the construction site was a .38 caliber Smith and Wesson revolver, and the gun’s chamber contained one live round and four spent cartridge shells (A148–A151 [Deady: 200–03]; People’s Exhs. 10 [discharged bullet] and 14 [stipulation]). Detective Acevdeo tested the revolver and found that it was “operable and capable of being discharged” (A149, A156 [Deady: 201, 208]; People’s Exh. 14 [stipulation]). Using a comparison microscope, Deady determined that one of the spent cartridges that was in the .38 revolver had been fired from that gun (A150–A154 [Deady: 202–06]). KRISTEN SMITH, a criminalist at the Office of the Chief Medical Examiner, testified as an expert in DNA analysis (A117–A121 [Smith: 169–73]). Smith analyzed three swabs from the revolver collected by Officer Sirignano, and she determined that the DNA of at least three people was present in the sample (A125–A129, A131–A137 [Smith: 177–81, 183–89]; People’s Exh. 8 [Chief Medical Examiner case file for gun swabs]). Smith compared defendant’s DNA profile to the DNA mixture found on the revolver and concluded that defendant was a possible contributor to the mixture -12- (A129–A130 [Smith: 181–82]).4 There was not “enough information” in the DNA mixture for Smith to say that defendant was “definitely included,” but enough of defendant’s DNA was present to say that defendant’s DNA “could be there” (A129– A130, A133, A136 [Smith: 181–82, 185, 188]). The Defense Case Defendant did not present any evidence at trial. Verdict and Sentencing On November 22, 2010, the jury convicted defendant of Criminal Possession of a Weapon in the Second Degree. On December 15, 2010, the court sentenced defendant to five years in prison to be followed by two and one-half years of post- release supervision. THE POST-JUDGMENT PROCEEDINGS Defendant’s CPL 440.10 Motion By papers dated February 27, 2013, defendant moved through new counsel to vacate the judgment of conviction pursuant to CPL 440.10. Defendant argued that his attorney provided deficient representation because he failed to move to suppress the gun (A9–A10). Defendant’s new attorney averred that he had spoken to defendant’s trial counsel, and that trial counsel had explained that he did not request a suppression 4 Officer Pengel had previously obtained a DNA sample from defendant, and the NYPD had sent the sample to the Office of the Chief Medical Examiner (A89–A90, A100– A103 [Pengel: 141–42, 152–55]; A127–A128 [Smith: 179–80]; People’s Exh. 9 [Chief Medical Examiner case file for defendant’s DNA swab]). -13- hearing because he mistakenly believed it would have been necessary for defendant to admit to having possessed the gun in order to establish standing. Trial counsel added that making such an admission would have prevented defendant from testifying on his own behalf at trial (A14). Defendant’s new attorney asserted that trial counsel’s performance was deficient, because his decision not to move for a suppression hearing was based on ignorance of the law and could have no reasonable strategic justification (A15). Moreover, defendant contended that he was prejudiced by trial counsel’s allegedly deficient performance because he “almost certainly” would have “won suppression of the gun” (A24). Relying on the undisputed facts elicited at trial, defendant argued that the information available to the police limited them to a level- two common-law inquiry, and that his “flight” did not give the police reasonable suspicion to pursue him (A25–A30). Defendant claimed, therefore, that he discarded the gun in response to an illegal pursuit (A17, A30–A31). Defendant added that suppression of the gun would have “eviscerate[ed]” the case against him (A31). The People contended that defendant’s ineffective assistance claim failed, because even if the court had held a suppression hearing, defendant would not have succeeded in suppressing the gun (A41–A42). In particular, the People argued that the police officers were authorized to conduct a level-two common-law inquiry based on defendant and Taylor’s temporal and special proximity to the report of shots fired and the fact that they matched the description of the shooter (A43–A44). Further, the -14- People submitted that defendant’s flight elevated the predicate to reasonable suspicion, permitting the police to pursue defendant (A43). In reply papers, defendant argued that he did not have to demonstrate that he would have won at a suppression hearing in order to obtain relief (A50). Instead, defendant claimed, it was enough to show that “the police activity was ‘highly questionable,’” and that he had a “colorable” suppression claim (A50–52). The CPL 440.10 Decision In a written decision dated August 9, 2013, Justice Stolz denied defendant’s CPL 440.10 motion. At the outset, the court determined that defendant’s trial counsel should have moved for a suppression hearing, given that suppression of the gun would “in all likelihood have meant the end of the case” (A57). And, the court found that there was no “persuasive argument” that counsel’s decision was a strategic one, especially in light of trial counsel’s comments to defendant’s new attorney that “demonstrated a misunderstanding of the applicable law” (A57).5 Justice Stolz found, however, that defendant had failed to show that trial counsel’s error “had an adverse impact on his case, or that the outcome would have been different” without the error (A60). Citing the undisputed trial testimony about the encounter, the court found that the police had the right to approach defendant and 5 Specifically, a defendant is not required to admit possession of contraband to establish standing and can instead rely on assertions made by the police. See People v. Burton, 6 N.Y.3d 584, 588–89 (2006). -15- Taylor and conduct a common-law inquiry (A57–A58). The court explained that the level-two approach was justified by defendant’s “spatial and temporal proximity” to the report of shots fired and the fact that defendant’s clothing and that of Taylor “matched to some degree that of the radioed description” (A57–A58). The court observed further that defendant’s flight from the police officers, who had justification for a level-two inquiry, elevated their suspicions to level three and authorized pursuit (A58). Justice Stolz noted that, although the police officers wore plainclothes and drove an unmarked car, the most likely explanation for defendant’s flight was that he had recognized them as police (A59). Thus, because the pursuit was justified, the gun that defendant discarded during the pursuit was properly recovered (A69–A60). Accordingly, the court found that it was not “reasonably probable” that defendant would have prevailed at a suppression hearing, and that “in all likelihood such a [suppression] motion would have been denied” (A60). Justice Stolz concluded, therefore, that defendant had failed to demonstrate that the error by counsel “had an adverse impact on his case, or that the outcome would have been different” without the error (A60). THE APPELLATE DIVISION DECISION The Appellate Division unanimously affirmed defendant’s conviction and Justice Stolz’s denial of his post-judgment motion. Pertinent here, while noting that there was no strategic justification for defense counsel’s failure to move to suppress the firearm, the Appellate Division determined that counsel’s omission “did not cause defendant -16- any prejudice under the state or federal standards” (A3–A4). In this regard, the Appellate Division agreed with the 440.10 court that “based on undisputed material facts,” defendant “would not have prevailed on a suppression motion” (A4). The Appellate Division explained that defendant’s flight, combined with the information already known to the police officers, gave rise to reasonable suspicion and justified the officers’ pursuit of defendant (A4). Alternatively, the Appellate Division held that seizure of the gun was lawful “under the doctrine of abandonment” (A4–A5). The Appellate division contrasted this case with People v. Clermont, 22 N.Y.3d 931 (2013), explaining that the suppression issue in this case was not “close” such that “a properly litigated motion might have been successful, or where a suppression hearing is now warranted in the interest of fairness” (A4). Finally, the Appellate Division declined to reduce defendant’s sentence in the interest of justice (A5). POINT THE COURTS BELOW PROPERLY DENIED DEFENDANT’S POST-CONVICTION MOTION (Answering Defendant’s Brief). The 440.10 court and the Appellate Division determined that defendant’s ineffective assistance of counsel claim lacked merit, because he did not suffer any prejudice as a result of trial counsel’s failure to move to suppress the gun. Relying on the undisputed facts contained in the trial record, those courts determined that even if defendant had obtained a suppression hearing, he would not have succeeded in -17- precluding the admission of the gun at trial. In fact, the Appellate Division opined that the suppression issue was not even “close.” Nonetheless, defendant asks this Court to grant him a suppression hearing, maintaining that he has “at least a colorable” argument that the gun should have been suppressed (Defendant’s Brief: 23–30). In fact, defendant contends that he should receive not just a suppression hearing but also a new trial (id.: 32–37). He asserts that, even if it is clear that the actions of the police were entirely proper, he was entitled to a suppression hearing in order to provide him with discovery material for use in plea negotiations and to “lock[] the People’s witnesses into their testimony” (id.). Defendant’s arguments are entirely lacking in merit. As the courts below found, the undisputed facts demonstrated that the seizure of the gun was appropriate, and thus defendant could not have prevailed on a motion to suppress. Of course, trial counsel cannot be deemed ineffective for failing to file a motion that had no reasonable chance of success. Moreover, defendant certainly has no right to a new trial. Even if he received ineffective assistance in connection with his suppression motion, he would be entitled only to a remand for a suppression hearing, as there is no allegation of error in the trial itself. A. The standard of review for post-conviction claims of ineffective assistance of counsel. Under CPL 440.10(1)(h), a defendant may move to vacate the judgment of conviction on the ground that it was obtained in violation of his constitutional right to -18- the effective assistance of counsel. As this Court has recognized, it is not always necessary for a court to hold a hearing in order to resolve an ineffective assistance of counsel claim raised in a motion to vacate the judgment. See People v. Satterfield, 66 N.Y.2d 796, 799 (1985). Instead, depending on the “nature of the claimed ineffective assistance,” the court may be able to resolve the motion by examining the trial record and the papers submitted by defendant in support of the motion. Id. Further, to prevail on a claim of ineffective assistance of counsel under the federal constitution, a defendant must satisfy a two-pronged test. First, the defendant must show that counsel’s performance was so deficient that his conduct fell “outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 690 (1984). “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Second, to prevail on an ineffective assistance claim, the defendant must show prejudice in that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 689–90, 694. In particular, where an ineffective assistance claim is based on counsel’s failure to make a suppression motion, the defendant must “prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence[.]” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see also United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990); -19- United States v. Caputo, 808 F.2d 963, 967 (2d Cir. 1987); accord Young v. United States, 56 A.3d 1184, 1193 (D.C. 2012) (“To succeed on an ineffectiveness claim grounded on counsel’s failure to file a suppression motion, it is the movant’s burden to show that a Fourth Amendment claim would have been successful”); People v. Givens, 237 Ill.3d 311, 331 (2010) (to show prejudice based on counsel’s failure to file a suppression motion, the defendant must show “a reasonable probability that: (1) the motion would have been granted, and (2) the outcome of the trial would have been different had the evidence been suppressed”) (internal citations and quotation marks omitted); Comm. v. Comita, 441 Mass. 86, 91 (2004) (“in order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful”); People v. Wharton, 53 Cal.3d 522, 576 (1991) (rejecting ineffective assistance of counsel claim based on finding that “the suppression motion would have been denied”) (in bank). Similarly, under the New York constitution, a defendant alleging ineffective assistance of counsel must show that he did not receive “meaningful representation” in light of the evidence, the law, and the circumstances of the particular case, viewed in totality as of the time of the representation. People v. Caban, 5 N.Y.3d 143, 155–56 (2005); People v. Henry, 95 N.Y.2d 563, 565 (2000); People v. Benevento, 91 N.Y.2d 708, 712 (1998); People v. Baldi, 54 N.Y.2d 137, 147 (1981). Under that standard, a reviewing court must determine whether counsel’s actions rendered unfair the -20- proceedings as a whole. Benevento, 91 N.Y.2d at 713–14; see also People v. Thompson, 21 N.Y.3d 555, 560 (2013); People v. Stultz, 2 N.Y.3d 277, 283–84 (2004). This Court has proclaimed that a showing of prejudice is a “significant” element under the New York analysis, see Caban, 5 N.Y.3d at 155–56; Stultz, 2 N.Y.3d at 284, and has noted that it “would, indeed, be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice.” Stultz, 2 N.Y.3d at 283–84. Further, for an attorney’s single mistake to deprive a defendant of his constitutional right to counsel, it must be an “‘egregious and prejudicial error[.]’” Thompson, 21 N.Y.3d at 561 (quoting Caban, 5 N.Y.3d at 152). For an error to rise to that level, it must be “clear-cut and dispositive[.]” People v. McGee, 20 N.Y.3d 513, 518 (2013). More specifically, a defense attorney’s failure to move to suppress evidence can amount to ineffective assistance when the defendant establishes “the absence of strategic or other legitimate explanations for counsel’s failure to pursue ‘colorable’ claims[.]” People v. Garcia, 75 N.Y.2d 973, 974 (1990) (quoting People v. Rivera, 71 N.Y.2d 705, 709 [1988]). However, it is well established that “[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.” Stultz, 2 N.Y.3d at 287; Caban, 5 N.Y.3d at 152. Therefore, when an ineffectiveness claim concerns an attorney’s failure to pursue a suppression claim, the defendant has not been prejudiced or deprived of meaningful representation if the motion “would not have resulted in a different ruling.” People v. -21- Evans, 16 N.Y.3d 571, 576 (2011) (an attorney’s failure to move to reopen a suppression hearing was not ineffective assistance); accord People v. Walker, 115 A.D.3d 889, 889– 90 (2nd Dep’t 2014) (the defendant was not deprived of meaningful representation by counsel’s failure to move to reopen the suppression hearing “since defendant would not have been entitled to suppression . . . based on the trial testimony either”); People v. Surowka, 103 A.D.3d 985, 987 (3rd Dep’t 2013) (the defendant was not prejudiced or deprived of meaningful representation by counsel’s failure to move for suppression); People v. Matthews, 27 A.D.3d 1115, 1116 (4th Dep’t 2006) (“Defendant has failed to show that a pretrial motion to suppress evidence, if made, would have been successful and has failed to establish that defense counsel failed to provide meaningful representation”); People v. Massillon, 289 A.D.2d 103, 104 (1st Dep’t 2001) (“since defendant’s detention was clearly based on reasonable suspicion, defendant could not have been prejudiced by his counsel’s failure to argue that defendant’s spontaneous statement was the fruit of an unlawful seizure”), habeas granted on other ground, Massillon v. Conway, 574 F.Supp.2d 381 (S.D.N.Y. 2008). B. Because any motion to suppress the gun would have failed, the sole alleged error by counsel did not prejudice defendant or undermine the fairness of the proceedings. Applying these standards, defendant is not entitled to relief for trial counsel’s alleged error in failing to move to suppress the gun. Simply put, defendant has failed to demonstrate that he had a reasonable chance of success on a suppression motion if -22- one had been filed. As the courts below found, the record reveals that defendant would not have prevailed on a suppression motion. In fact, defendant’s request that this Court order a hearing as a remedy for counsel’s failure to file a suppression motion raises a moot point, because there are no facts in dispute. As both of the lower courts recognized (see A4, A57 n.3), the material facts regarding the recovery of the gun were elicited at trial, and those facts are undisputed. Critically, defendant did not argue to the 440.10 court that more fact- finding was necessary to resolve his ineffective assistance claim: instead, he relied on the undisputed trial evidence. Analyzing those undisputed facts, both the 440.10 court and the Appellate Division held that the gun was properly recovered. Thus, the record is complete, and it makes clear that defendant would have lost at a suppression hearing if defense counsel had requested one. Likewise, as the Appellate Division made clear, it would have affirmed the ruling on appeal. Notably, too, after losing in the trial court and the Appellate Division, defendant would have had no reasonable chance of obtaining review by this Court. After all, this Court has no power to review the Appellate Division’s rulings that the police pursuit was based on reasonable suspicion and that, in any event, defendant abandoned the gun. See, e.g., People v. Brown, 25 N.Y.3d 973 (2015) (“Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact”); Pines, 99 N.Y.2d at 527 (same); Hollman, 79 N.Y.2d at 193–94 (issue of abandonment is a mixed question of law and fact). Hence, the trial court and the -23- Appellate Division made clear that they would have denied defendant’s suppression motion, and he could not have obtained review by this Court. Accordingly, there would be no point in remanding the case for a suppression hearing now, since the result of such a proceeding in the lower courts is already clear, and this Court would have no power to review that determination. See People v. Evans, 83 N.Y.2d 934, 935 (1994). In any event, even if defendant’s 440.10 claim presents a reviewable question of law, it lacks merit. As the courts below concluded, the undisputed facts reveal that the police had reasonable suspicion to pursue defendant. Thus, the gun that defendant discarded during the chase was properly recovered. Further, and independently, defendant abandoned the gun in a calculated and voluntary act, and thus he lacked standing to seek suppression of it. Accordingly, defendant’s trial counsel cannot be faulted for failing to file a motion to suppress.6 6 When responding to defendant’s 440.10 motion, the People did not dispute the contention of defendant’s appellate counsel that trial counsel chose not to file a suppression motion based on a mistaken belief that defendant would have to admit possession of the gun to establish standing. Notably, however, that contention was based on hearsay: defendant failed to submit an affidavit from trial counsel supporting this allegation. Of course, the 440.10 court should not have accepted appellate counsel’s hearsay declarations as establishing the reasons for trial counsel’s conduct. See United States v. Maguire, 600 F.2d 330, 332 (1st Cir. 1979) (affidavit of appellate counsel summarizing conversations with trial counsel was hearsay and could not establish ineffective assistance claim); McKenzie v. Greene, No. 05 Civ. 9420 (LTS), 2008 WL 1944032, at *6 (S.D.N.Y. 2008) (appellate counsel’s recounting of “telephone conversations” with trial counsel did not constitute “competent evidence” in support of ineffective assistance claim). In any event, even accepting defendant’s hearsay allegations about trial counsel’s reasons, defendant suffered no prejudice, for the reasons detailed below. -24- 1. The 911 call, combined with the officers’ observations on the scene, provided the police with reasonable suspicion to pursue defendant. To begin, the 911 call itself, combined with the officers’ observations at the scene, provided reasonable suspicion for the police pursuit, which led to the recovery of the gun. Of course, the primary consideration in determining the legality of particular police conduct during a street encounter is its reasonableness. People v. Batista, 88 N.Y.2d 650, 653 (1996); Benjamin, 51 N.Y.2d at 271. In order to make that assessment, police-citizen interaction has been divided into four stages. First, if a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. People v. De Bour, 40 N.Y.2d 210, 223 (1976). Second, the common-law right of inquiry, a wholly separate level of contact, is “activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.” Id. Third, and pertinent here, where a police officer has reasonable suspicion that a particular person was involved in a crime, the officer is authorized to pursue that person and forcibly stop and detain him. Sierra, 83 N.Y.2d at 929; see People v. Martinez, 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”). Reasonable suspicion has been defined as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe -25- criminal activity is at hand.” Cantor, 36 N.Y.2d at 112–13. Fourth, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized. De Bour, 40 N.Y.2d at 223. Applying these standards here, the police officers had reasonable suspicion to pursue defendant. As the trial testimony undisputedly demonstrates, Officer Pengel and his colleagues responded to a radio run reporting shots fired in the vicinity of 150th Street and Macombs Place (A69–A70 [Pengel: 121–22]). Further, the caller described the perpetrator as a black man wearing a black bubble jacket (A99 [Pengel: 151]). Of course, the police officers were duty-bound to respond when they received a radio report that shots had been fired. See Benjamin, 51 N.Y.2d at 270. Based on their familiarity with the area, the officers went to the Dunbar Houses on Seventh Avenue, reasoning that the shooter was likely to pass through that area in order to reach the nearest subway station and escape the scene (A69–A71 [Pengel: 121–23]). And, sure enough, less than five minutes after the 911 call and within a block of the reported location of the gunfire, Pengel and his fellow officers saw defendant and Matthew Taylor walking together through the entrance to the Dunbar Houses (A71–A72 [Pengel: 123–24, 131–34, 146–51]). Consistent with the broadcast description of the shooter, defendant and Taylor were both black men wearing bubble jackets. Significantly, Taylor’s bubble jacket was black, further conforming to the description (A86, A99– A100 [Pengel: 138, 151–52]). The officers, therefore, had reason to believe that defendant and Taylor might have been involved in the shooting. Indeed, the report of -26- the shooting constituted an imminent threat to public safety, and it was incumbent on the police to take reasonable measures to protect the public. See, e.g., Benjamin, 51 N.Y.2d at 270. Hence, the report here of shots fired from an informant, combined with the police officers’ observations near the scene of two persons matching a general description of the shooter, provided reasonable suspicion for a level-three pursuit and stop. Simply put, the informant had alerted the police to a dangerous situation, and the officers’ observations demonstrated that the report was credible. It was certainly reasonable for the police, in response, to take the limited action of conducting a level- three stop. See, e.g., People v. Rivera, 84 A.D.3d 636, 636 (1st Dep’t 2011) (police had reasonable suspicion where identified 911 caller reported that a person with a firearm had threatened to kill him and “provided a detailed and generally accurate description of defendant and one of his companions, as well as their location and direction of travel”); People v. Evans, 201 A.D.2d 882 (4th Dep’t) (the police had reasonable suspicion where the defendant matched an identified informant’s description of a man with a gun, and he was the only person at the location who matched the description when he was stopped shortly after the 911 call), aff’d, 83 N.Y.2d 934 (1994). Defendant responds that under the rule of Florida v. J.L., 529 U.S. 266, 268 (2000), “an anonymous tip that a person is carrying a gun is, without more” insufficient to provide the police with reasonable suspicion justifying a level-three intrusion (Defendant’s Brief: 27–28); accord People v. Moore, 6 N.Y.3d 496, 499 (2006) (to -27- provide reasonable suspicion, an anonymous tip must be accompanied by “predictive information” that allows police to test the veracity of the tip). Defendant’s reliance on J.L., however, is misplaced for two reasons. First, J.L. did not involve a report of shots fired; the report in J.L. was merely one of a man with a gun. See J.L., 529 U.S. at 268. Likewise, in Moore, the caller did not report gunshots; instead, the informant stated only that there was a “dispute” involving a man with a gun. See Moore, 6 N.Y.3d at 497. Here, in contrast, the 911 caller reported an actual shooting. This was, therefore, a far more dangerous situation, and the police were entitled to greater flexibility in their response, in order to protect the public. Indeed, gun violence is responsible for scores of deaths annually in New York City and is, by all accounts, increasing.7 Second, defendant should not be heard to describe the 911 call here as anonymous, because he failed to preserve any such claim. In his 440.10 motion, while arguing that the police lacked reasonable suspicion to pursue him, defendant did not once assert that the 911 call was “anonymous.” Instead, defendant raised that claim for the first time in his Appellate Division brief. It is therefore not properly presented for this Court’s review. See, e.g., People v. Jones, 85 N.Y.2d 998, 999 (1995) (argument raised “for the first time at the Appellate Division” was unpreserved); People v. Huston, 7 See Al Baker and J. David Goodman, Gunplay Rises in New York, Reviving Issue for de Blasio, N.Y. TIMES, June 1, 2015, at A1. -28- 203 A.D.2d 200, 201 (1st Dep’t 1994) (“Defendant’s claims are unpreserved for this Court’s review as he failed to raise them in his motion to vacate the judgment”). Moreover, defendant points to no record evidence supporting his current claim that the police responded to an “anonymous” 911 call. Similarly, defendant’s appellate assertion that “the police had no information regarding the reliability of the person” who made the 911 call (Defendant’s Brief: 27–28), is without support other than defendant’s say-so. Defendant’s failure to raise these arguments in his 440.10 motion is telling. The 440.10 procedure gave defendant an opportunity to raise claims dehors the trial record and afforded him a mechanism to introduce new facts into evidence. Defendant, however, never asserted that the 911 call was anonymous and never sought to introduce evidence to support such a claim. Undoubtedly, defendant did not raise this argument to the 440.10 court because he knew that further factfinding would not support a claim that the 911 call was anonymous. At the very least, defendant should not be heard to raise a new factual claim on appeal, and he should be bound by his failure to raise this claim to the motion court. Notably, there is good reason to believe that the 911 call was not in fact anonymous. Since the decision in J.L. 15 years ago, technology has evolved in a significant way. As the Supreme Court has recently recognized, the modern 911 emergency system “has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.” Navarette -29- v. California, 134 S.Ct. 1683, 1689–90 (2014). The Navarette Court therefore concluded that a caller’s use of the 911 system is an “indicator of veracity,” as “a reasonable officer could conclude that a false tipster would think twice before using such a system.” Id. Given these changes in technology, the 911 call here cannot be equated with the untraceable, anonymous tip at issue in J.L. Instead, under Navarette, the 911 caller should be treated as an identified informant. And critically, “a 911 call from an identified citizen, describing a person with a gun at a specified location or a person who has just committed a violent crime, will,” as a general matter, “provide the police with reasonable suspicion[.]” Kamins, Barry, New York Search and Seizure, § 2.04[2][d] (2014) (emphasis in original). Alternatively, defendant asserts that the 911 call did not give the police officers reasonable suspicion to pursue him, because—he claims—he did not “even fit the vague description” provided by the 911 caller (Defendant’s Brief: 26). But, contrary to defendant’s claim, he matched the description sufficiently to provide the police with reasonable suspicion to investigate in the fast-moving and dangerous situation at hand. Significantly, defendant was a black man wearing a bubble jacket—thus meeting the caller’s general description of the perpetrator. And, of course, defendant’s companion was also wearing a black bubble jacket, which matched the 911 caller’s description. As far as the police knew, either defendant or Taylor could have been the shooter, and it was incumbent on them to investigate both possibilities in order to protect the public. -30- Under those circumstances, the fact that defendant was wearing a “gray” bubble jacket rather than a black one (Defendant’s Brief: 26), was an extremely slight discrepancy that hardly made the actions of the police unreasonable. In fact, the trial evidence showed that defendant’s bubble jacket was gray on one side and black on the other (A87–88 [Pengel: 139–40, 152]; People’s Exh. 4 [defendant’s jacket]). It was certainly reasonable, therefore, for the police to conduct a brief investigatory stop to determine whether either defendant or Taylor was the shooter. See People v. Smalls, 292 A.D.2d 213–14 (1st Dep’t 2002) (detention of the defendant was based on reasonable suspicion notwithstanding “the slight discrepancy as to the description of defendant’s clothing”). Defendant contends, too, that the pursuit was improper because the police “had no information concerning the shooter’s flight path” and the officers merely went to the Dunbar Houses on what he describes as a “hunch” (Defendant’s Brief: 27). However, defendant is incorrect, as the officers engaged in good police work. As the trial testimony demonstrated, the officers—who knew the area—went to the Dunbar Houses on Seventh Avenue between 149th and 150th Streets because it made sense for the shooter to travel that way in order to leave the crime scene and reach the subway station at 149th Street and Seventh Avenue. Thus, the direction in which defendant and Taylor were traveling provided the officers with an additional reason to suspect that they were involved in the shooting. -31- 2. Even if the 911 call justified only a level-two approach and inquiry, defendant’s immediate flight upon the officers’ approach elevated their suspicions and authorized the pursuit. Next, even if the 911 call and the officers’ initial observations of defendant and Taylor did not, standing alone, provide reasonable suspicion for a level-three pursuit and stop, those factors undeniably justified a level-two approach and inquiry. Critically, the officers did not immediately conduct a level-three stop when they spotted defendant and Taylor. Instead, they merely conducted a level-one inquiry, or at most a level-two inquiry, by calling out to defendant and his companion, “[H]ey buddy, come here” (A73 [Pengel: 125]). See People v. Reyes, 83 N.Y.2d 945, 946 (1994) (holding that level-one request for information was initiated when police yelled, “‘Hey, stop, excuse me’ or ‘Stop, hey, stop, police,’ or words to that effect”). Indeed, defendant does not dispute that the officers’ initial action was appropriate. See (Defendant’s Brief: 24).8 Then, as the 440.10 court and the Appellate Division recognized, defendant’s actions on the scene elevated the predicate to reasonable suspicion and justified the officers’ pursuit of him. Of course, “factors rapidly developing or observed at the 8 See, e.g., People v. Lacy, 104 A.D.3d 422, 423 (1st Dep’t 2013) (“The spatial and temporal proximity to the reported firing of shots, and the fact that defendant matched the description, gave rise to a founded suspicion that defendant might be the person who had fired the shots”); People v. Montilla, 268 A.D.2d 270, 270 (1st Dep’t 2000) (“the general description of the robbery suspect and his location provided in the radio run, together with the police officer’s arrival at the scene within minutes of the crime and his observation of defendant, who matched the description, provided the officer with a common law right to inquire”); see also People v. Cintron, 304 A.D.2d 454, 454 (1st Dep’t 2003) (“While the two men did not perfectly match the description in the radio run, there were enough similarities to provide the police with, at a minimum, the right to make a common-law inquiry”). -32- scene” may, in combination with information relayed in a radio run, provide an officer with reasonable suspicion of criminality. Benjamin, 51 N.Y.2d at 270–71. In particular, a defendant’s flight from the police, “in conjunction with other attendant circumstances,” can give rise to reasonable suspicion. Pines, 99 N.Y.2d at 527; see also Moore, 6 N.Y.3d at 500–01 (level of suspicion is elevated from common-law inquiry to reasonable suspicion when the defendant has “actively fled from the police”); Martinez, 80 N.Y.2d at 448 (reasonable suspicion based on the defendant’s immediate flight from the police combined with his presence at night in an area known for drug activity and his removal from a metal grate of an instrument often used to conceal drugs); People v. Leung, 68 N.Y.2d 734, 736 (1986) (“When coupled with defendant’s immediate flight upon the officer’s approach, the passing of [what appeared to be a ‘three-dollar bag’] establishes the necessary reasonable suspicion”). This rule applies even where the police officers are in plainclothes and driving an unmarked car, so long as the circumstances permit the officers “to reasonably infer that defendant fled because he realized he was in the presence of the police.” People v. Pitman, 102 A.D.3d 595, 596 (1st Dep’t 2013); see also People v. White, 117 A.D.3d 425, 425 (1st Dep’t 2014); Lacy, 104 A.D.3d at 423; People v. Collado, 72 A.D.3d 614, 615 (1st Dep’t 2010); People v. Byrd, 304 A.D.2d 490 (1st Dep’t 2003). Indeed, “[h]eadlong flight . . . is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Further, the primary consideration in determining -33- the legality of particular police conduct during a street encounter is its reasonableness. Batista, 88 N.Y.2d at 653; Benjamin, 51 N.Y.2d at 271. “[P]olice-citizen encounters are dynamic situations” in which the basis for suspicion often escalates as events unfold before the officers’ eyes. De Bour, 40 N.Y.2d at 225. Courts should not attempt to “dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle” in assessing street encounters. People v. Chestnut, 51 N.Y.2d 14, 23 (1980). Here, applying these standards, the courts below properly determined that defendant’s actions at the scene elevated the officers’ suspicions and permitted a level- three pursuit. In that regard, when Lieutenant O’Neill said, “Hey buddy come here,” defendant immediately started running (A73, A95–A97 [Pengel: 125, 147–49]). Defendant’s immediate flight on seeing the officers, combined with the founded suspicion that the officers already had based on the report of shots fired and the description, provided reasonable suspicion justifying their pursuit of him. See Moore, 6 N.Y.3d at 500–01; White, 117 A.D.3d at 425; People v. Michimani, 115 A.D.3d 528, 529 (1st Dep’t 2014); Collado, 72 A.D.3d at 615; Cintron, 304 A.D.2d at 454; Montilla, 268 A.D.2d at 270; People v. Acevedo, 222 A.D.2d 217, 218 (1st Dep’t 1995).9 9 Noting that the language used by the officers here might have suggested that they intended to conduct a level-one inquiry, defendant observes that a suspect’s flight “cannot elevate a level-one request for information to a level-three intrusion” (Defendant’s Brief: 25, n.6). However, regardless of whether O’Neill’s words amounted to only a level-one request for information, the information that was known to the police as they approached defendant -34- This Court’s decision in Pines, 99 N.Y.2d at 525, supports this conclusion. In Pines, the officers’ initial observations of the defendant provided a founded suspicion of criminality. Id. at 526. Then, when two police officers got out of their car and asked the defendant “if they could talk for a minute[,]” the defendant “ran away.” Id. This Court subsequently affirmed the First Department’s holding that, when considered along with the police’s initial observations, “[the] defendant’s flight upon the approach of the officers, and the additional suspicion engendered by it, then gave rise to a reasonable suspicion of criminal conduct[.]” Id. at 526–27. The same analysis applies here: defendant’s precipitous flight elevated the officers’ suspicions, justifying a level- three pursuit. Further, because there is support in the record for the Appellate Division’s finding, this Court has no power to review that determination. See Pines, 99 N.Y.2d at 527.10 permitted them to make, at least, a level-two common-law inquiry. Accordingly, since the officers had at least a founded suspicion, defendant’s immediate flight elevated the predicate to reasonable suspicion. Kamins, New York Search and Seizure, § 2.04 (2)(f) (“if the police have enough information to conduct a common-law inquiry, but only request information under a ‘level-one’ encounter, flight can give rise to reasonable suspicion justifying a police pursuit”). For that reason, defendant is wrong to rely on cases where police only had the right to make a level-one inquiry. See People v. Beckett, 88 A.D.3d 898, 899 (2nd Dep’t 2011) (“there were no specific circumstances indicating that the defendant might be engaged in criminal activity”); People v. Riddick, 70 A.D.3d 1421, 1422 (4th Dep’t 2010) (at the inception of the encounter, “the police had an objective credible reason to approach the three men”). 10 Notably, too, Pines refutes defendant’s contention that the police must have some intermediate level of suspicion beyond the second level in order for a suspect’s flight to elevate the predicate to level three (Defendant’s Brief: 28). In Pines, this Court held that the defendant’s flight alone, upon the approach of the police, elevated a founded suspicion of criminality to reasonable suspicion. See 99 N.Y.2d at 526–27. -35- Nevertheless, defendant responds that his immediate flight upon the officers’ approach did not provide the police with reasonable suspicion to pursue him, asserting that “there was no evidence he recognized the officers as police” (Defendant’s Brief: 28–30). But contrary to defendant’s contention, the courts below fairly inferred that defendant recognized the officers as police, even though the officers were wearing plainclothes and traveling in an unmarked car. For one thing, it is hardly a secret that many of the NYPD’s plainclothes officers drive Chevy Impalas—the type of car the officers drove here. See Pitman, 102 A.D.3d at 596. In fact, as Officer Pengel explained at trial, civilians in the neighborhood routinely assumed that he and his colleagues were police officers (A112–13 [Pengel: 164–65]). Simply put, the street-smart public knew that the plainclothes officers were, in fact, police; they were not fooling anyone. And, here, defendant took flight immediately after Lieutenant O’Neill had called out to him; he did not even wait to determine why O’Neill wanted to talk to him. While O’Neill used “everyday civilian language” (see Defendant’s Brief: 29), defendant obviously recognized him instantly as an officer. Indeed, defendant had no cause to flee for any reason other than that he recognized the men as police officers. This is particularly true where the officers did not have their weapons drawn and did not do anything that reasonably could be perceived as threatening. In fact, defendant continued to run even after Officer Pengel sounded the unmarked car’s air horn, which “gave a siren, like whoop, whoop sound” (Pengel: 162– 63)—a distinct characteristic of a police siren. Defendant’s continued flight, after he -36- plainly recognized that the men who wished to talk to him were police officers, was precisely the type of circumstance that could elevate the officers’ suspicions from “founded” to “reasonable.” See People v. Ward, 201 A.D.2d 292, 293 (1st Dep’t 1994) (officers in civilian clothes and unmarked car reasonably concluded that the defendant had recognized them as police, “especially when he continued to flee after the police put on their siren”); see also People v. McKinley, 101 A.D.3d 1747, 1749 (4th Dep’t 2012) (police officers in an unmarked vehicle, who had the authority to conduct a common-law inquiry, were entitled to pursue the defendant in light of his “flight from the officers and his refusal to stop after the officers explicitly identified themselves as police and he was directed to stop”). Significantly, the Appellate Division has “repeatedly observed that the circumstances of a case may indicate that a suspect recognized the police, even where the officers were neither in uniform nor in a marked car[.]” Lacy, 104 A.D.3d at 423. And, the circumstances here “permitted the officers to reasonably conclude that the most likely explanation for defendant’s behavior was that he had recognized them as the police[.]” Collado, 72 A.D.3d at 615; see also White, 117 A.D.3d at 425 (the defendant and his companion “turned and fled immediately upon seeing the plainclothes officers” who “did nothing more than stop their car and get out” and who “reasonably believed they had been recognized as the police”); Lacy, 104 A.D.3d at 423 (the defendant immediately fled from an unmarked police vehicle “before the police could even approach him to make an inquiry,” and these circumstances permitted the -37- officers to reasonably infer that the defendant fled because he knew they were police); Pitman, 102 A.D.3d at 596 (“Although the officers were in plainclothes in an unmarked car, the circumstances permitted the officers to reasonably infer that defendant fled because he realized he was in the presence of the police”); Byrd, 304 A.D.2d at 490 (the defendant “reasonably appeared to have recognized the police despite their unmarked vehicle and civilian attire”). In short, defendant’s precipitous flight at the sight of the police elevated the officers’ level of suspicion, justifying a pursuit. Because defendant discarded the gun in the course of a lawful pursuit, the police properly recovered the firearm. Ramirez- Portoreal, 88 N.Y.2d at 110. And, of course, the recovery of the loaded firearm provided the police with probable cause to arrest defendant for possession of a weapon. See, e.g., People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981). 3. The recovery of the gun was also proper under the independent doctrine of abandonment. In any event, even if the police pursuit of defendant had been illegal, suppression of the gun would still have been properly denied on the ground that defendant voluntarily abandoned the gun, thus depriving him of standing to seek suppression. As the Appellate Division concluded, see Bilal, 118 A.D.3d at 449, the evidence fully supports a determination that defendant made a calculated and voluntary decision to abandon the gun, notwithstanding the police conduct. See Boodle, 47 N.Y.2d at 404. -38- As a rule, a defendant who knowingly and voluntarily discards property has no legitimate expectation of privacy in the property and therefore waives the protection of the Fourth Amendment. See Ramirez-Portoreal, 88 N.Y.2d at 110; Martinez, 80 N.Y.2d at 448. In that regard, even if a suspect discards contraband during an unlawful police pursuit, suppression will not lie if the suspect’s decision to abandon the contraband was “an independent act involving a calculated risk.” Boodle, 47 N.Y.2d at 404. An act is independent if the defendant had “enough time to reflect and formulate a strategy for ridding himself of the incriminating evidence.” Id. Applying these standards, defendant’s decision to discard the revolver here was a calculated act. In that regard, defendant did not immediately and spontaneously discard the revolver in response to the police pursuit. Thus, contrary to defendant’s assertion (Defendant’s Brief: 31), he did not discard the incriminating evidence as an immediate and direct result of the officers’ conduct. Instead, defendant led the police on a prolonged chase without, at first, discarding the weapon. Then, when defendant reached 149th Street, he made an independent, calculated decision to dispose of the incriminating evidence. Indeed, the manner in which defendant divested himself of the gun reflected careful thought. After all, defendant did not simply throw the gun to the ground. Rather, defendant crossed the street to reach a construction site. As the photographs introduced into evidence at trial showed, the fence surrounding the site had sheet metal overhead. Defendant then proceeded to climb up the fence to throw -39- the gun into the site, obviously wanting to make it as difficult as possible for the police to recover it. Under the circumstances, defendant’s decision to climb the fence in order to discard the gun in a barricaded construction site reflected a “considered and calculated act undertaken to assist his effort to escape and to rid himself of incriminating evidence[.]” People v. Fields, 171 A.D.2d 244, 249 (1st Dep’t 1991). In other words, defendant abandoned the gun voluntarily rather than as the direct result of an allegedly illegal pursuit. By doing so, defendant forfeited any expectation of privacy in the abandoned property. See Boodle, 47 N.Y.2d at 404 (the defendant’s decision to discard a revolver while in police custody evinced an “independent act involving a calculated risk” rather than a “spontaneous reaction” to allegedly illegal police conduct); People v. Atwater, 12 A.D.3d 333, 333 (1st Dep’t 2004) (the defendant made a “strategic, calculated decision” to discard a stolen credit card). The cases relied upon by defendant do not aid his argument that he “spontaneously” discarded the gun (Defendant’s Brief: 31). For instance, in People v. Howard, 50 N.Y.2d 583, 593 (1980), the defendant’s act of discarding a vanity case as he sought to break open a basement door and window was a “spontaneous reaction to the necessity of evading his pursuers[.]” Here, on the other hand, defendant’s act of climbing the fence and throwing the gun away was hardly a necessary step to evade the officers. Similarly, in People v. McCullough, 31 A.D.3d 812, 813–14 (3rd Dep’t 2006), an officer pursued defendant “to the edge of a pond[,]” where the defendant disposed -40- of his contraband. The defendant in McCullough, therefore, made a spontaneous decision once he realized he could not evade the police. Here, in contrast, defendant was running in the open street and took it upon himself to veer to the construction site and dispose of his gun. Finally, in People v. Smalls, 83 A.D.3d 1103, 1104–05 (2nd Dep’t 2011), the defendant spontaneously handed a gun to his brother as they ran up a stairwell, away from the police and towards the roof of a building. Unlike here, the defendant in Smalls merely got rid of the gun at his earliest opportunity; he did not take the time to reflect on his decision nor did he veer out of his way to discard the weapon. Hence, by weaving out of his way and climbing a fence to discard the gun, defendant engaged in a calculated act to abandon the illegal firearm. He thus forfeited any expectation of privacy in the property and the police lawfully recovered it. And, of course, the Appellate Division’s finding that defendant voluntarily abandoned the gun is unreviewable so long as it is supported by the record. See Hollman, 79 N.Y.2d at 193–94. In short, as both courts below recognized, defendant would not have prevailed on a suppression motion for several reasons. First, the undisputed facts in the record establish that the police had reasonable suspicion to pursue defendant based on the information the officers received in the radio run combined with defendant’s immediate flight. Thus, the police properly recovered the gun that defendant discarded during the chase. Further, and independently, the recovery of the gun was lawful because defendant made a calculated decision to abandon the weapon. Under these -41- circumstances, defendant’s 440.10 claim was properly denied, because an attorney is not ineffective for failing to make a suppression motion that has no reasonable chance of succeeding. See Stultz, 2 N.Y.3d at 287. 4. Defendant does not have a “colorable” claim as it is clear that he would not have prevailed at a suppression hearing. Despite all this, defendant insists that his suppression claim was at least “colorable,” and that he is entitled to a hearing followed by a new trial to remedy counsel’s error in failing to raise it. In support of this argument, defendant relies on this Court’s statement in Garcia, 75 N.Y.2d at 974, that in order for a defendant to make a successful ineffectiveness claim, he “must demonstrate the absence of strategic or other legitimate explanations for counsel’s failure to pursue ‘colorable’ claims[.]” But, contrary to defendant’s contention, this Court did not hold in Garcia that an attorney must be deemed ineffective whenever he fails to raise a “non-frivolous” argument (Defendant’s Brief: 23). Indeed, by that standard, every criminal trial would require a do-over if an appellate counsel could imagine a single, straight-faced argument that trial counsel failed to raise. Instead, by using the word “colorable,” this Court clearly meant that an ineffective assistance claim will lie only if defense counsel failed to raise a claim that would have had at least some reasonable chance of success. Indeed, that is the only interpretation of “colorable” that comports with this Court’s pronouncement in Stultz, supra, that an attorney will not be deemed ineffective for failing to raise claims that have little or no chance of success. -42- Significantly, defendant cannot point to a single case in which this Court has found an attorney ineffective for not raising a losing claim. By contrast, this Court has ordered relief where an attorney’s error denied the defendant a chance to fully litigate a “close” claim on which he could have prevailed. See, e.g., Clermont, 22 N.Y.3d at 933– 34. Indeed, in Clermont, the suppression claim at issue was not only close, but counsel’s errors left the record incomplete and confused. Thus, the Court remanded for further proceedings on the defendant’s suppression motion. See id. at 934.11 Given the state of the record in Clermont, such further proceedings were plainly necessary to determine whether the defendant’s suppression motion had merit. Here, in sharp contrast, there is no such need for a suppression proceeding. As discussed, the relevant facts were elicited at trial, and those facts are undisputed. Indeed, in his CPL 440.10 motion, defendant relied solely on the undisputed trial facts, and he did not claim that there was any other evidence that he could present—such as the testimony of some other witness—that would have suggested that the police conduct was improper. Of course, in the absence of any factual dispute, it was entirely proper for the courts below to resolve the CPL 440.10 motion by examining the existing record. See Satterfield, 66 N.Y.2d at 799 (the 440.10 court was not required to hold a 11 Specifically, in Clermont, 22 N.Y.3d at 934, the Court directed that both parties be permitted to offer renewed legal argument, and that the defendant would have the option of reopening the suppression hearing. -43- hearing because “given the nature of the claimed ineffective assistance, the motion could be determined on the trial record and defendant’s submissions on the motion”).12 Simply put, even if trial counsel should have filed a suppression motion, that error cannot be said to have undermined the fairness of the proceedings. After all, as the courts below found, the undisputed facts revealed that the police conduct was proper and that defendant was not entitled to suppression of the gun. Accordingly, defendant is not entitled to CPL 440.10 relief.13 5. Defendant’s claim that he is entitled to a hearing regardless of the merits of his suppression claim is unpreserved and without merit. Still, defendant insists that, regardless of whether he had a viable suppression claim, he is nonetheless entitled to a remand for a suppression hearing followed by a new trial. Specifically, defendant asserts that, regardless of the merits of his suppression claim, he was entitled to a hearing so that he could gather potential impeachment material and learn information that might strengthen his hand in plea negotiation efforts (Defendant’s Brief: 14, 35–36). But, because defendant failed to raise this argument in 12 While defendant now muses that he might testify at a suppression hearing (Defendant’s Brief: 24), he made no such claim in his 440.10 motion, nor has he indicated how his testimony might support his suppression claim. Accordingly, in evaluating defendant’s 440.10 claim, this Court is bound by the trial facts, which are undisputed and which formed the sole basis for defendant’s 440.10 motion. 13 Notably, even the cases cited by defendant hold that an ineffectiveness claim must fail if the record does not support the defendant’s claim for relief. See Rivera, 71 N.Y.2d at 708–09 (the defendants failed to “demonstrate the absence of strategic or otherwise legitimate explanations for counsel’s failure to request a particular hearing”); Garcia, 75 N.Y.2d at 974 (the defendant failed to establish that his attorney was ineffective because, at a CPL 440.10 hearing, counsel “offered sound reasons” for not challenging defendant’s arrest). -44- his CPL 440.10 papers and made it for the first time before the Appellate Division, it is unpreserved. See CPL 470.05(2); People v. Ashley, 71 A.D.3d 1286, 1287 (3rd Dep’t 2010) (claim unpreserved where the defendant did not raise it at sentencing or in plea withdrawal motion), aff’d, 16 N.Y.3d 725 (2011); Jones, 85 N.Y.2d at 999 (argument raised “for the first time at the Appellate Division” was unpreserved); Huston, 203 A.D.2d at 201 (“Defendant’s claims are unpreserved for this Court’s review as he failed to raise them in his motion to vacate the judgment”); People v. Gayle, 168 A.D.2d 201, 203 (1st Dep’t 1990) (argument was unpreserved where the defendant “raise[d] it, belatedly, in connection with his appeal from the CPL 440.10 motion”). In any event, defendant’s argument that he was entitled to a pretrial hearing, regardless of the merits of his suppression claim, is patently lacking in merit. Indeed, in arguing that he was entitled to a pretrial hearing for discovery purposes, defendant misses the point of a suppression hearing. No precedent supports defendant’s claim that he was entitled to a suppression hearing simply for use as a discovery vehicle. In fact, it is well established that the defense has no general constitutional right to discovery in criminal cases. See Gray v. Netherland, 518 U.S. 152, 168 (1996). By the same token, with a few notable exceptions, see, e.g., Brady v. Maryland, 373 U.S. 83 (1963), pre-trial discovery in New York is “governed by statute,” namely CPL 240.20 and CPL 710.30. People v. Copicotto, 50 N.Y.2d 222, 225 (1980). And no statute, of course, entitles a defendant to a suppression hearing merely so that he can get a preview of the People’s case. See People v. Chipp, 75 N.Y.2d 327, 337 (1990). -45- Moreover, it is equally well settled that suppression hearings “are not automatic or generally available for the asking[.]” People v. Mendoza, 82 N.Y.2d 415, 422 (1993). To the contrary, a defendant is entitled to a suppression hearing only if there is a material factual dispute that must be resolved in order for a suppression claim to be decided. Mendoza, 82 N.Y.2d at 426; People v. Gruden, 42 N.Y.2d 214, 215 (1977). And, at a suppression hearing, the issue is “limited to whether the evidence was obtained in violation of defendant’s constitutional rights[.]” People v. Johnson, 83 N.Y.2d 831, 834 (1994); see also People v. Peterkin, 151 A.D.2d 407, 408 (1st Dep’t 1989) (the purpose of a suppression hearing is “to examine the legality of police conduct”), aff’d, 75 N.Y.2d 985 (1990). Consequently, there is no valid reason to hold a suppression hearing if there is no indication that the police actions in this case violated the defendant’s rights. And, as explained, a hearing would serve no purpose here, because the undisputed trial evidence refutes defendant’s suppression claim. Similarly, as discussed, a defense attorney will not be deemed ineffective for failing to file a pretrial motion that had no reasonable chance of success. Stultz, 2 N.Y.3d at 287. And, of course, a defendant will not prevail on an ineffective assistance claim absent a showing of prejudice or that the alleged error undermined the fairness of the proceedings. Strickland, 466 U.S. at 691; Benevento, 91 N.Y.2d at 713–14. Hence, since the undisputed facts reveal that defendant was not entitled to suppression of the gun, his claim for post-judgment relief was properly denied. -46- C. Even if this Court determines that defendant was prejudiced by defense counsel’s failure to request a suppression hearing, the proper remedy is not to reverse defendant’s conviction but to remand the case for a suppression hearing. Finally, even if defendant is entitled to some relief for his attorney’s failure to file a suppression motion, he is at most entitled to a remand for a suppression hearing— not a reversal of his conviction followed by a new trial. As this Court has made clear, “a violation of a defendant’s right to counsel at a suppression hearing ordinarily entitles the defendant to a new suppression hearing, but not to automatic reversal of his conviction and a new trial.” People v. Wardlaw, 6 N.Y.3d 556, 558 (2006); see also People v. Carracedo, 89 N.Y.2d 1059, 1061 (1997) (the defendant was not entitled to reversal of his conviction and a new trial because a de novo suppression hearing cured prejudice of ban of overnight consultation between the defendant and counsel during the hearing); People v. Slaughter, 78 N.Y.2d 485, 493 (1991) (ordering a new suppression hearing as the remedy after the suppression court failed to conduct an adequate inquiry before allowing the defendant to proceed pro se at the hearing). As this Court has explained, it makes no sense to order a new trial if the deprivation of counsel was limited to the suppression hearing and “did not affect the trial.” Wardlaw, 6 N.Y.3d at 559. As a result, a defendant whose right to counsel was violated at a suppression hearing is entitled to a new trial only “if, after the new hearing, the evidence is suppressed.” Id.; see also People v. Banch, 80 N.Y.2d 610, 619 (1992) (“the remedy for a pretrial Rosario violation [at a hearing] is not automatic reversal of -47- the conviction but a new hearing”); People v. Geaslen, 54 N.Y.2d 510, 517 (1981) (new hearing as remedy for Brady violation in connection with suppression hearing).14 Significantly, in accordance with these longstanding principles, this Court did not order a new trial in Clermont, supra, when it determined that the defendant had been denied effective assistance of counsel at the suppression hearing. Instead, this Court “conditionally modif[ied] the judgment” by remitting the case for “further proceedings on the suppression application.” Clermont, 22 N.Y.3d at 934; accord People v. Layou, 114 A.D.3d 1195 (4th Dep’t 2014) (same); People v. Major, 96 A.D.3d 677, 678 (1st Dep’t 2012) (remanding for a suppression hearing where defense counsel failed to file a “colorable” motion to suppress); People v. Johnson, 37 A.D.3d 363, 363–64 (1st Dep’t 2007) (remanding for a new suppression hearing where defense counsel failed to make colorable suppression arguments at original hearing). Similarly, here, the appropriate remedy for counsel’s failure to file a suppression motion is, at most, a remand for a suppression hearing. The judgment of conviction should not be vacated unless defendant prevails at that hearing. Defendant’s reliance on Lafler v. Cooper, 132 S.Ct. 1376 (2012) (Defendant’s Brief: 33–34), is thoroughly misplaced. Lafler concerned an entirely different question: 14 Although the Banch Court ordered a new trial for the defendant because of an “independent trial Rosario violation,” it explained that, in the event that a Rosario violation concerns the suppression hearing only, “[r]etrial is necessary only if, after that hearing, the motion court concludes that defendant should prevail.” Banch, 80 N.Y.2d at 619 n.4. -48- whether a defendant who had rejected a pretrial plea offer based on ineffective advice from counsel and then was convicted after trial was entitled to a constitutional remedy. See id. at 1382–83. While defendant seizes on language in Lafler that, in cases involving a defendant’s Sixth Amendment rights, the remedies “should be ‘tailored to the injury suffered from the constitutional violation’” in order to “‘neutralize the taint’” of the error, id. at 1388–89, the only “taint” of any ineffectiveness by defense counsel here was the opportunity to have a suppression court rule on the legality of the police conduct. Ordering a suppression hearing thus would redress the injury suffered by defendant, and the conviction should only be set aside if defendant prevails at the hearing. Indeed, convictions should not lightly be tossed aside where no error in the trial has been identified. As the Supreme Court has recognized, the “reversal of a conviction entails substantial societal costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place[.]” United States v. Mechanik, 475 U.S. 66, 72 (1986). Hence, granting defendant a new trial would not only go against long- established precedent, but it would be inconsistent with the Supreme Court’s pronouncement in Lafler that the remedy for ineffective assistance must be narrowly tailored to address the particular injury. Defendant’s reliance on People v. Kevin W., 22 N.Y.3d 287 (2013) (Defendant’s Brief: 36), is equally misplaced. In Kevin W., 22 N.Y.3d at 292, a police witness gave “‘sketchy’ and ‘undeveloped’” testimony at a suppression hearing, and the court granted -49- the defendant’s motion to suppress a gun that the police recovered from him. The court then granted the People’s motion to reargue and permitted the People to present the testimony of another police witness. Id. at 292–93. Based on the testimony of the second officer, combined with the evidence elicited at the original hearing, the court denied defendant’s suppression motion. Id. at 293–94. The Appellate Division reversed and granted suppression, holding that the court committed error when it reopened the hearing to permit the People to shore up their case. Id. at 294. This Court affirmed, reasoning that it was improper for the court to reopen the hearing when the People had an adequate opportunity to justify the search and seizure at the first hearing. Id. at 297. Here, in sharp contrast to Kevin W., the People did not seek to reopen a closed hearing in order to earn an unjustified “second chance” at a favorable suppression ruling. Indeed, defendant does not allege that the People—or even the court— committed any error at all. As discussed, the only question here is the appropriate remedy for defense counsel’s failure to request a suppression hearing. As explained, to remedy that omission, defendant is entitled—at most—to a remand for the hearing that his attorney failed to request.15 15 Defendant’s insinuation that, absent a reversal of his conviction, a new hearing would be marred by “tailor[ed]” testimony (Defendant’s Brief: 36)—in addition to being an unfounded, preemptive attack on the credibility of the People’s witnesses—is utterly baseless. Indeed, defendant would have ample opportunity to cross-examine the witnesses at the hearing and to explore any testimony he believes to be “tailored.” -50- * * * In sum, trial counsel’s decision not to move for suppression did not amount to ineffective assistance, since there was no reasonable probability that defendant would have prevailed at a suppression hearing if one had been requested. Indeed, as the 440.10 court and the Appellate Division recognized, the undisputed trial facts demonstrated that a motion to suppress the gun would have failed. As demonstrated, the police had reasonable suspicion to pursue defendant given that his location and description corresponded to the information relayed by the 911 caller who reported the shooting. At the very least, the police had the authority to conduct a level-two inquiry when they approached defendant, and his immediate flight elevated the predicate to reasonable suspicion. Further, even if the pursuit could be deemed improper, defendant abandoned the gun and therefore lacked standing to challenge the legality of its recovery by the police. Finally, if this Court determines that defendant was prejudiced by counsel’s failure to request a suppression hearing, the only remedy to which defendant is entitled is a remand for a suppression hearing. Defendant is not entitled to a new trial unless he prevails at that hearing. -51-