People v. Shutsha

Appellate Division of the Supreme Court of New York

People v. Shutsha

2017 NY Slip Op 5320, 151 A.D.3d 657, 54 N.Y.S.3d 850

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 2017

Docket4389 2869/14

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 5320 (People v. Shutsha) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Shutsha, 2017 NY Slip Op 5320, 151 A.D.3d 657, 54 N.Y.S.3d 850 (N.Y. Ct. App. 2017).

Pincite

Opinion

Appeal from judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppression hearing; James M. *658 Burke, J., at jury trial and sentencing), rendered June 10, 2015, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3V2 to 7 years, held in abeyance, and the matter is remitted to Supreme Court for a new suppression hearing.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to argue at the suppression hearing that there were no exigent circumstances justifying the warrantless search of defendant’s bag incident to his arrest. There was no reasonable strategic basis for defense counsel’s failure to challenge the search of the bag on the ground of lack of exigency, and defendant has presented substantial arguments for suppression on that ground (see People v Clermont, 22 NY3d 931 [2013]).

However, we reject defendant’s argument that, rather than ordering a new hearing, we should reverse and grant suppression. The issue was plainly unpreserved (see People v Miranda, 27 NY3d 931 [2016]), and, owing to the lack of focus on this issue at the hearing, the record is insufficiently developed with regard to the precise circumstances of the search of defendant’s bag.

Concur — Sweeny, J.P., Renwick, Andrias, Kapnick and Kahn, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppression hearing; James M. *658 Burke, J., at jury trial and sentencing), rendered June 10, 2015, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3V2 to 7 years, held in abeyance, and the matter is remitted to Supreme Court for a new suppression hearing.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to argue at the suppression hearing that there were no exigent circumstances justifying the warrantless search of defendant’s bag incident to his arrest. There was no reasonable strategic basis for defense counsel’s failure to challenge the search of the bag on the ground of lack of exigency, and defendant has presented substantial arguments for suppression on that ground (see People v Clermont, 22 NY3d 931 [2013]).

However, we reject defendant’s argument that, rather than ordering a new hearing, we should reverse and grant suppression. The issue was plainly unpreserved (see People v Miranda, 27 NY3d 931 [2016]), and, owing to the lack of focus on this issue at the hearing, the record is insufficiently developed with regard to the precise circumstances of the search of defendant’s bag.

Concur — Sweeny, J.P., Renwick, Andrias, Kapnick and Kahn, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 5320, 151 A.D.3d 657, 54 N.Y.S.3d 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shutsha-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack