People v. Kindell

135 A.D.3d 423, 23 N.Y.S.3d 65

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 2016
• Docket: 16111 2249/11
• Status: Published

Opinions

Appeal from judgment, Supreme Court, New York County (Daniel P. Conviser, J., at suppression hearing; Rena K. Uviller, J., at jury trial and sentencing), rendered December 19, 2011, convicting defendant of burglary in the second degree, attempted burglary in the second degree and bail jumping in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 19V2 years to life, held in abeyance, and the matter is remitted to Supreme Court for a reopened suppression hearing.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to move to reopen the suppression hearing based on trial testimony. The court denied suppression of a tool bag and the burglar’s tools it contained, based on the suppression hearing testimony of two officers that the bag was open at defendant’s feet and the tools were in plain view when the building superintendent who had chased defendant and detained him flagged down their police car. However, the superintendent testified at trial that the bag was in defendant’s hand and closed when the police arrived. We agree with defendant that the failure of trial counsel — who, notably, did not represent defendant at the hearing — to move to reopen the hearing in light of the superintendent’s testimony was both objectively unreasonable and prejudicial (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

Under CPL 710.40 (4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court.

With regard to the “reasonable diligence” requirement, the People argue that it was not met here because defendant, who was standing several feet from the superintendent when the police arrived, was in a position to know whether the bag was closed or open at the time. Under the rule the People posit, evidence adduced for the first time from a witness at trial — no matter how reliable the witness, how unlikely he or she would have been to cooperate with the defense investigation before trial, or how conclusively his or her testimony would undermine the suppression ruling — would never entitle a defendant to a reopened hearing, so long as the defendant was in a position where he or she could have observed the same events as the witness. We reject such a narrow reading of the statute (see e.g. People v Figliolo, 207 AD2d 679 [1st Dept 1994]). While, as a general matter, a defendant may be presumed to have knowledge of the circumstances surrounding his or her arrest (see People v Hankins, 265 AD2d 572 [2d Dept 1999], lv denied 94 NY2d 880 [2000]), that presumption is not mandatory, and the principle does not mandate the conclusion that such knowledge existed under the particular facts of this case. However, even if such knowledge is assumed, we find that, under these circumstances, defendant satisfied the “reasonable diligence” requirement. He could not have known that a People’s witness would completely contradict the police officers on the critical suppression issue. Moreover, if at the hearing, he had taken the stand to present his account of the arrest, his credibility would have been subject to impeachment because his status as an interested witness and his lengthy criminal record.

Contrary to the dissent’s suggestion, the possibility that defense counsel did not move to reopen the suppression hearing because he “legitimately” did not believe the superintendent’s testimony about the bag is speculative and improbable. Indeed, to reach such a conclusion counsel would have had to disregard several compelling factors that undermine such assessment: (1) when a witness makes specific and detailed factual allegations that are helpful to a defendant, it is unreasonable to summarily reject it as incredible;

* (2) it is unreasonable for a defense counsel to discredit an unbiased witness’s testimony that is helpful to the defendant and instead assume that a police officer’s testimony is the only credible testimony; and (3) the suppression court would have examined the officer’s testimony on this issue without hearing the superintendent’s testimony to the contrary.

Under these circumstances, it is far more likely that counsel, who did not represent defendant at the suppression hearing, did not focus on the contradiction and gave no thought to a motion to reopen. More importantly, even if the dissent is correct about counsel’s subjective belief that the superintendent was mistaken about the police opening the bag, it is difficult to comprehend how opting not to give the court the opportunity to make that credibility determination for itself can be deemed a competent strategy. Indeed, defense counsel “had everything to gain and nothing to lose” by moving to reopen the suppression hearing (see People v Sinatra, 89 AD2d 913, 915 [2d Dept 1982]). A decision not to make such a motion was a decision not to contest the admissibility of critical evidence against his client.

It is difficult to take seriously the dissent’s argument that counsel may have believed that reopening the suppression hearing would have been of little or no value. Indeed, as the dissenter himself points out, at trial, counsel exerted significant effort to minimize the probative value of the evidence found in defendant’s possession, which the People argued constituted “burglary tools.” Defense counsel argued that the tools alleged to be in defendant’s possession were not described in any detail and appeared to be typical of those used by a contractor or handyman, which was consistent with defendant’s statement that he was a contractor, not a burglary. Likewise, during summation, counsel informed the jury that they would receive an adverse inference charge from the court instructing them that because the police had lost the bag and tools, they could infer that the evidence would have been unfavorable to the People. Under the circumstances, contrary to the dissent’s suggestions, the suppression of this incriminating evidence — the burglary tools — would have been consistent with defense counsel’s theory at trial that there was no evidence that defendant entered 336 East 71st Street unlawfully or that he intended to commit a crime.

The dissent also posits that defense “counsel, understandably, may have thought it counterproductive to run the risk of bolstering the credibility of the only witness who claimed to have seen defendant inside the building.” The dissent, however, fails to explain how defense counsel’s use of a presumably unbiased prosecution witness’s testimony to seek suppression of evidence would have enhanced the same witness’s credibility at trial to the detriment of defendant. If at the reopened suppression hearing, the court had found the witness’s testimony about the events surrounding the bag credible, then the evidence would have been suppressed and not subject to direct or cross-examination at trial. Conversely, had the court found that suppression was not appropriate despite the conflicting testimony of the witness and the officer, that ruling would not have enhanced the witness’s credibility in any way. In short, defense counsel did not have any reasonable strategy for failing to move to reopen the suppression hearing. Concur — Friedman, J.P., Acosta, Renwick and Moskowitz, JJ.

Specifically, the superintendent testified that the officers opened the bag after they directed defendant to put it down and that he did not satisfactorily answer their questions.