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Court Rules on Motion to Dismiss

A New York Criminal Lawyer said that, it is alleged that on December 3, 1994 the defendant, committed the offense of criminal possession of a controlled substance in the first degree, Penal Law § 220.21 (1), and criminal possession of a controlled substance in the third degree, Penal Law § 220.16 (1), in the County of Bronx. He was indicted therefor by a Bronx Grand Jury on January 17, 1995. The defendant was tried and convicted by a jury of criminal possession of a controlled substance in the first degree on August 8, 1996. On October 30, 1996, the defendant was adjudicated a predicate and sentenced to a term of imprisonment of 15 years to life.

A New York Criminal Lawyer said that, on July 30, 1999, pursuant to CPL 440.10 the defendant moved this court to vacate the judgment of conviction on the ground that the defendant’s conviction resulted from a violation of his right to the effective assistance of counsel as guaranteed by the United States and New York Constitutions. In the alternative, the defendant sought an evidentiary hearing on the motion to vacate the judgment on the ground of ineffective counsel.

A Queens Criminal Lawyer said that, the defendant alleges that without a strategy reason, defense counsel, failed to provide the defendant effective assistance of counsel when he neglected to file a pretrial omnibus motion to (1) challenge the legality of the arrest and suppress the contraband in question and defendant’s statement to the police, and (2) inspect the Grand Jury minutes and dismiss the indictment, based on the insufficiency of the evidence before the Grand Jury. The defendant alleges that counsel was also ineffective on two additional grounds, the first being that counsel never objected to the court’s jury charge which omitted the element of defendant’s knowledge of weight of the contraband. Nor did counsel request that the court submit to the jury the lesser included offense of criminal possession of a controlled substance in the second degree.

The issue in this case is whether defendant’s motion to vacate the judgment of conviction on the ground that the defendant’s conviction resulted from a violation of his right to the effective assistance of counsel as guaranteed by the United States and New York Constitutions should be granted.

A Nassau County Criminal Lawyer said this court has reviewed the court file, transcripts, motion papers and memoranda, and this court vacates the defendant’s conviction. A new trial is ordered.

While meaningful representation has never been clearly defined, its characteristics have included, but are not limited to: pursuing a reasonable and clear trial strategy, making appropriate pretrial motions, cross-examining witnesses, moving for a trial order of dismissal, persuading the court to consider defenses, and raising pertinent objections.

A Queens Criminal Lawyer said when considering a motion based on ineffective counsel, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and the defendant must overcome this presumption that, under the circumstances, counsel’s strategy might be considered sound trial strategy. The defendant bears the burden of demonstrating that counsel’s representation was not meaningful. In applying the standard of meaningful representation, counsel’s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective. All evidence pertaining to the claim of ineffective counsel must be weighed in context and as of the time of complete representation at the trial level for resolving Sixth Amendment violation claims. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

During initial proceedings prior to the trial in question, the defense attorney submitted to Justice an affirmation of actual engagement and in it stated that he was preparing and would submit pretrial motions to the court no later than May 18, 1995. The court file does not indicate that such motions were made nor the nature of the motions to be made. The current defense counsel, argues that the former defense attorney was ineffective in not moving the court pretrial to suppress statements made by the defendant to the police following his arrest. Current counsel claims that the defendant’s arrest was based on the police officer’s “hunch” without reasonable suspicion that the defendant was engaging in any criminal activity. Counsel further alleges that the officer unlawfully seized the defendant, recovered contraband, arrested the defendant and, pursuant to the unlawful arrest, the defendant allegedly made an inculpatory statement to the police. Counsel alleges that both the contraband and defendant’s statements were fruits of an illegal stop and seizure and the evidence would have been suppressed had the attorney made the appropriate motion.

The People argue that if it is highly doubtful that a pretrial suppression motion would have been successful, then counsel’s failure to make the motion is not prejudicial. The People add that the defendant did not have standing to move to suppress the drugs because during the trial the defendant denied ever possessing the drugs.

In order to determine whether a pretrial suppression motion would have been successful, the court must consider the officer’s actions. It must consider whether the police officer’s action was justified in its inception, and then whether the conduct was reasonably related in scope to the circumstances which rendered its initiation permissible.

The defendant, presented a suppression claim that was, at the least, colorable and warranted the court’s attention. The officer’s act of approaching the defendant for questioning because he sat in a car with another person is questionable. A suppression hearing would have established whether the officer had some articulable reason sufficient to justify this initial action. The hearing would have established whether the conduct was as equally consistent with innocent behavior as it was with some criminal activity.

Having established that the defendant had a colorable suppression claim and counsel did not make a motion on the claim, the next showing in this ineffective counsel claim must be that “there was no legitimate reason for not pursuing these colorable claims.” The defendant’s former attorney, submitted an affirmation of actual engagement in which he affirmed that motions were being prepared and would be filed no later than May 18, 1995. Such motions were never submitted. According to the current defense counsel’s affirmation in support of motion, a telephone conversation with he revealed that he made no written applications and thought he made a general oral motion, on no specific grounds, to inspect minutes and dismiss the indictment. There is no legitimate reason for not pursuing the suppression claim and there is merit to the claim of ineffective counsel.

In determining whether the defendant had standing to move to suppress drugs, the court cannot rely upon the defendant’s statement during the trial. On cross-examination the defendant denied possession of the drugs. To deny standing because the defendant denied possession during the trial would be to overlook the fact that the defendant had a claim which would have required a suppression hearing prior to the trial. It would require overlooking the possibility that a suppression hearing might have affected the outcome of the case against the defendant.
The current defense counsel also argues that the former defense attorney was ineffective as counsel in failing to move the court to inspect and dismiss the indictment based on evidence before the Grand Jury being insufficient to prove the defendant had knowledge of the weight of the drug and, therefore, no charge of criminal possession of a controlled substance in the first degree could be sustained.

The People argue the evidence was sufficient to support a Grand Jury indictment. Following the defendant’s testimony under redirect, prior counsel made a general oral motion to dismiss the indictment and the court denied the motion based on counsel’s general application. However, the general nature of the application distinguishes it from an application to dismiss based on an inability to sustain the weight required for a charge of criminal possession of a controlled substance in the first degree.

The general motion for dismissal did not present the claim that the evidence did not establish that the defendant had the requisite knowledge, then an element of criminal possession of a controlled substance in the first degree, that he possessed an aggregate weight of four ounces or more of the cocaine. On June 10, 1995 legislation was enacted making the weight of a substance a strict liability element.

Therefore, a specific request to dismiss the indictment for lack of evidence of knowledge of the weight of the cocaine, or to at least reduce the charge to criminal possession of a controlled substance in the second degree, was warranted and this also might have altered the outcome of the case. It certainly would have affected the criteria for appealing on the issue of knowledge since “even where a motion to dismiss for insufficient evidence is made, the preservation requirement compels that the argument be `specifically directed’ at the alleged error.”

The third allegation relevant to the charges of ineffective counsel pertains to the former defense counsel not objecting to the court’s charge to the jury having omitted the element of knowledge of the weight of the controlled substance. Current defense counsel argues that the defendant’s knowledge of the weight of the drug was an essential element of criminal possession of a controlled substance in the first degree and the court’s charge allowed the jury to convict the defendant without determining whether that element had been proven.

The People argue that Ryan did not add a new element to criminal possession of a controlled substance in the first degree, but rather interpreted the meaning of the statutory element. The People are correct in stating that Ryan (supra) did not add a new element to criminal possession in the first degree. In support of their position the People cite People v Gray (supra). However, in Gray the Court addresses the narrow claim of a Patterson error in trial procedure. The claim in Gray is not substantive in nature but rather that an element of the charge was not given to the jury. The claim of the defendant, is that the charge pertaining to the element of knowingly possessing should have specified that the defendant must have known the weight of the drug he possessed was four ounces or more. The defendant, does not allege that there should have been an additional element charged to the jury. The defendant alleges that the substance of the charge on the element of knowingly possessing was inadequate and defendant’s counsel did not object to the charge. “Prior to Ryan it was generally accepted by the trial and intermediate appellate courts of this State that an adequate charge was that the People had to prove that such cocaine knowingly and unlawfully possessed by the defendant was of an aggregate weight of two or more ounces.” However, Ryan required scienter and while this court might have left its charge undisturbed, believing it was sufficiently explanatory of the element of knowledge, counsel never made the request for the expanded charge which might have been granted and might have changed the outcome of the case.

The fourth and final allegation charges that the former defense counsel did not request that the court submit to the jury the lesser included offense of criminal possession of a controlled substance in the second degree. The defendant alleges that had the request for the lesser included offense been granted and the defendant had been convicted of such, the defendant would have received a lesser sentence.

The People argue that defendant’s trial testimony and prior counsel’s summation illustrate an “all-or-nothing strategy” directed toward obtaining no less than an acquittal. The People further argue that wanting no less than an acquittal precludes counsel from requesting the lesser included offense. Such argument disregards the fact that a defendant who goes to trial desires an acquittal. To state that the quest for an acquittal precludes a defendant from requesting the lesser included offense would be to negate CPL 300.50 (2) which states: “If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so”.
After considering the entire set of circumstances involved in this case, this court vacates the judgment against the defendant and orders a new trial.
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