People v Bilal

[*1] People v Bilal 2013 NY Slip Op 51568(U) Decided on August 9, 2013 Supreme Court, New York County Stolz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2013
Supreme Court, New York County

The People of the State of New York,

against

Rashid Bilal, Defendant.



6358/08



Appearances of counsel:

For the People:

Assistant District Attorney Siobhan Carty

New York County District Attorney's Office

One Hogan Place

NY, NY 10013

For the Defendant:

Center for Appellate Litigation (David Klem and Rachel Goldberg, of counsel)

74 Trinity Place

NY, NY 10006

Robert M. Stolz, J.

Defendant was found guilty after trial of Criminal Possession of a Weapon in the Second Degree, and on December 15, 2010, was sentenced by this Court to a term of imprisonment of five years' imprisonment to be followed by 2½ years of post-release supervision. Timely notice of appeal was filed, and appellate counsel was appointed on February 12, 2012. Defendant has now filed a motion, through counsel, to vacate his conviction pursuant to CPL § 440.10, claiming that his lawyer provided ineffective assistance of counsel.[FN1] The People oppose the motion.

Defendant bases his claim of ineffective assistance of counsel on counsel's failure to move for a Mapp hearing before trial, arguing that had such a motion been made, there was a "strong likelihood" that he would have won suppression of the gun recovered. At trial, Officer Richard Pengel testified that at about 9:30 p.m. on December 27, 2008, while on Adam Clayton Powell Boulevard (7th Avenue) and 145th Street, in plainclothes and in an unmarked car, he and three other officers responded to a report of shots fired in the vicinity of 150th Street and Macombs Place. The officers decided to proceed to 7th Avenue between 149th Street and 150th Street (about a block from [*2]where the shots had reportedly been fired), the location of the Dunbar apartment complex, because they thought that the perpetrators might exit from that location and attempt to get on the subway at 7th Avenue and 149th Street. The report had described the shooter as a black male in a black bubble jacket.

As soon as the officers arrived at the entrance to the Dunbar complex, they saw two black males exiting the complex, one wearing a black bubble jacket, and the other a gray jacket. The shorter one, wearing the black jacket, was later identified as Matthew Taylor, while the taller one in the gray jacket was later identified as the defendant, Rashid Bilal. The officers noted that Taylor matched the description, but also wanted to ask if the men had heard shots fired in the area, so they stopped directly behind the two men. Lieutenant O'Neill got out of the car, saying, "Hey, buddy, come here." Taylor stopped, but the defendant began to run, turning onto 149th Street toward 8th Avenue. Pengel followed the defendant in his car, while two other officers pursued the defendant on foot. Pengel did not hear anyone identify himself as a police officer. While chasing the defendant, Pengel intermittently pressed the air horn, producing a siren sound. Pengel then saw the defendant pull himself up a construction fence, throw a black object over the fence, drop back down, and continue to run. As Pengel chased the defendant, repeatedly ordering him to stop, the defendant finally stopped in the middle of the block, where he was apprehended. A loaded gun was recovered from the area where Pengel saw the defendant throw an object over the fence.

Defendant was indicted for second-degree weapons possession, based on a criminal complaint alleging that Pengel "recovered a loaded gun from where [he] observed the defendant throw it." Defense counsel filed an omnibus motion requesting a bill of particulars and discovery, as well as a request to inspect and dismiss the grand jury minutes; he made no request for any pre-trial hearings. Defense counsel met with appellate counsel (and counsel on this motion), and according to appellate counsel, defense counsel explained that he did not move for a Mapp hearing because he believed that defendant would have had to admit possession of the weapon in order to establish standing, and that such an admission would preclude his testimony at trial. He also stated that he had never thought about using the allegations as stated in the criminal complaint to establish standing, and had he known he could have established standing, he would have moved for suppression. See Defendant's Motion, Klem Affirmation at 6. No Mapp hearing was held.

To establish a claim of ineffective assistance of counsel, a defendant must prove that counsel's performance, viewed in its totality, did not amount to meaningful representation. See People v. Benevento, 91 NY2d 708, 711-12 (1998); People v. Barnes, 106 AD3d 600, 605 (1st Dep't 2013). A showing that counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel. People v. Rivera, 71 NY2d 705, 709 (1988). But where a single, substantial error "so seriously compromises a defendant's right to a fair trial, it will qualify as ineffective representation." People v. Hobot, 84 NY2d 1021, 1022 (1995). The defendant must demonstrate the absence of any legitimate or strategic explanation for defense counsel's actions. See Rivera, 71 NY2d at 709; Barnes, 106 AD3d at 605. The defendant must also show prejudice, although the standard differs slightly under state and federal law. Under state law, a defendant must show that counsel's errors ultimately affected the fairness of the process as a whole, or had an adverse impact on the basic points essential to the defense. See Benevento, 91 NY2d at 713-14; Barnes, 106 AD3d at 605; People v. LaBron, 172 AD2d 462, 463 (1st Dep't 1991). Under federal law, a defendant must show that there was a reasonable probability that, but for counsel's [*3]unprofessional conduct, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984); Barnes, 106 AD3d at 605. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Here, counsel's failure to move for a suppression hearing was error, particularly in a case where suppression of the gun would in all likelihood have meant the end of the case. See People v. Turner, 5 NY3d 476 (2005). The People do not argue that counsel's inaction was based on a strategic decision. Nor is there a persuasive argument to be made, particularly where counsel's comments to appellate counsel demonstrated a misunderstanding of the applicable law. See Rivera, 71 NY2d at 709 ("erroneous legal judgments about the viability of a request for a hearing" differ from a failure to move "motivated by strategy"). Under People v. Burton, 6 NY3d 584, 589 (2006), a defendant may rely on police factual assertions in a motion to suppress, and need not personally admit possession in order to comply with pleading requirements. See also People v. Johnson, 42 AD3d 341, 342-43 (1st Dep't 2007).[FN2]

However, as noted above, a conclusion that counsel made an error does not end the inquiry. There must be a finding that counsel's errors caused defendant prejudice. The People argue that defendant would not have prevailed at a hearing, while defendant argues that there was a "reasonable probability" that he would have won such a hearing.[FN3]

Here, defendant's spatial and temporal proximity to the report of shots fired, and the fact that the clothing of the two men matched to some degree that of the radioed description, provided the police with a level two common-law right to approach the men and gain explanatory information. See People v. DeBour, 40 NY2d 210, 223 (1976); People v. Lacy, 104 AD3d 422, 423 (1st Dep't), lv den, 960 NYS2d 407 (2013); People v. McKinley, 101 AD3d 1747, 1748 (4th Dep't 2012); People v. Ward, 201 AD2d 292 (1st Dep't 1994). Where a defendant flees from the police, who have justification for a common-law right to inquire, the predicate ripens into reasonable suspicion and permits police pursuit or limited detention. See People v. Moore, 6 NY3d 496, 500 (2006); People v. Pines, 99 NY2d 525, 526-27 (2002); People v. Martinez, 80 NY2d 444, 448 (1992); People v. Brujan, 104 AD3d 481, 482 (1st Dep't 2013). Defendant argues, however, that because the police here were in plainclothes and in an unmarked car, that defendant's flight was "innocuous," and that he fled "because of what he believed to be threatening strangers." Defendant's Memorandum of Law at 13-14. Defendant cites two cases in support, from the Second and Fourth Departments: People v. Riddick, 70 AD3d 1421 (4th Dep't 2010) and People v. Beckett, 88 AD3d 898 (2d Dep't 2011). While those cases are distinguishable from the facts at hand, even more importantly, several cases [*4]from the First Department, most with remarkably similar facts, do not support defendant's position.[FN4]

Most recently, in Lacy, the First Department noted that it had "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." 104 AD3d at 423 (emphasis added). In that case, a common law right to inquire ripened into reasonable suspicion after the police, in response to a report of shots fired, saw the defendant, who matched a clothing description, in "spatial and temporal proximity" to the crime, and he fled even though the police were in an unmarked car as they approached. The circumstances "permitted the officers to reasonably infer that defendant fled because he realized he was in the presence of police." Id.

The court cited People v. Collado, 72 AD3d 614 (1st Dep't), lv den, 15 NY3d 850 (2010), and the "cases cited therein" in support of this proposition. In Collado, a common-law right to inquire, based on the defendant's resemblance to a police sketch of a wanted person, was elevated to reasonable suspicion when the defendant fled, even though the officers were in plainclothes and an unmarked car. "The circumstances permitted the officers to reasonably conclude that the most likely explanation for defendant's behavior was that he had recognized them as police." 72 AD3d at 615 (emphasis added). Similarly, in Ward, defendant's location near where a robbery had just occurred, and the match of his clothing, "to some degree," to that of the robber's clothing, justified a common-law inquiry. Even though the police were in civilian clothes and an unmarked car, defendant's flight in response to their approach, especially when, as here, he "continued to flee after the police put on their siren," created reasonable suspicion and justified his brief detention. 201 AD2d at 292-93. See also People v. Pitman, 102 AD3d 595 (1st Dep't 2013) (defendant's flight, even though police in plainclothes and unmarked car, elevated level to reasonable suspicion);[FN5] People v. Byrd, 304 AD2d 490 (1st Dep't), lv den, 100 NY2d 579 (2003) (flight elevated level to reasonable suspicion even though officers in civilian attire and unmarked car; defendant "reasonably appeared to have recognized the police"); see also McKinley, 101 AD3d at 1749. Thus, following Collado, Ward, and Byrd, among other cases, a court would likely find that defendant's flight, added to the police's right to make a common-law inquiry, increased the level of suspicion to reasonable suspicion, justifying pursuit, and the recovery of the gun abandoned in flight was therefore not the product of any unlawful police activity. See Byrd, 304 AD2d at 490.

In sum, it is not "reasonably probable" that defendant would have prevailed had a Mapp hearing been held. Indeed, this Court concludes that in all likelihood, such a motion would have been [*5]denied. Accordingly, defendant has failed to demonstrate that counsel's error had an adverse impact on his case, or that the outcome would have been different without counsel's error. See Strickland, 466 US at 694; People v. Burwell, 968 NYS2d 83, 85 (1st Dep't 2013) (defense counsel's failure to raise sufficiency claim not ineffective, where the sufficiency claim was "unavailing" and would not have affected the outcome or deprived defendant of fair trial); LaBron, 172 AD2d at 463 (failure to make timely motion to suppress did not adversely impact the defense or affect the outcome where probable cause was amply demonstrated by testimony at trial).

The motion is denied.

Dated: August 9, 2013________________________

J.S.C. Footnotes

Footnote 1:The direct appeal has not been filed, pending the outcome of this motion.

Footnote 2:The 440 motion is not procedurally barred, as the People argue, as defendant is relying on facts not presented at trial to make his claim, namely, counsel's off-the-record comments to appellate counsel; those comments demonstrate the absence of a strategic or legitimate explanation for counsel's conduct. See CPL 440.10 (2) (b); People v. Vasquez, 103 AD3d 460, 461 (1st Dep't 2013).

Footnote 3:The court can decide the motion without conducting a hearing since the material facts are undisputed, and the issue is a legal one that can be decided based on the trial transcript and the papers submitted by counsel. See CPL § 440.30 (4) (a).

Footnote 4:In Beckett, a Second Department case, the People failed to establish any temporal or spatial proximity to the crime being investigated, and the jacket worn by the suspect did not match that given in the description, so there was initially an insufficient indication of criminal activity justifying a police pursuit. 88 AD3d at 899-900. In Riddick, a Fourth Department case, there was also insufficient evidence of any criminal activity before the defendant fled from an unmarked police van. 70 AD3d at 1422-23. In McKinley, a more recent Fourth Department case, the court itself distinguished Riddick, noting that "unlike in Riddick," the police, as here, were responding to a "reported crime." Therefore, they had a founded suspicion of criminal activity that increased to reasonable suspicion when the defendant fled, even though the officers were in an unmarked car. 101 AD3d at 1748-49.

Footnote 5:In Pitman, there was testimony that a Chevy Impala "stands out as the usual unmarked police vehicle." Pengel testified that he was driving a Chevy Impala (Tr: 144).