James Eckert, Assistant Monroe County Public Defender
When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result. The problem is that appellate courts look for counsel to conclude the hearing by saying “the fact that the police didn’t have a description and didn’t have a report of a crime and didn’t have any reason to arrest the defendant except that they wanted to ‘see what’s up’ failed to preserve the arguments made on appeal.” It doesn’t matter that everyone in the room knows what the issue is.
You have to say the magic words.
Also, if you start a suppression hearing by claiming that you’re overwhelmed with work and cannot competently represent your client, don’t be too surprised if people believe you. The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved. More importantly (because it’s far more common), defense counsel did not argue the suppression facts following the hearing:
“At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument. This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error. Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.”
Defense counsel’s failure at any timeto make the key arguments is the reason counsel was ultimately found to be ineffective. So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases. If you know what the hearing will be about, and there’s no strategic reason not to lay it out in your papers, this is something to keep in mind. Further, defense counsel erred in not taking exception to the court’s misstatement of facts. The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I’m sure your judge will be very understanding and accept your criticism with grace and wit.
The Court of Appeals relied on defense counsel’s claim to be unable to provide effective assistance, but noted that counsel’s representation was inadequate “before, during and after the proceeding”. In rejecting the prosecution’s harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, “In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined.” Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant’s arguments would be (presumably given the questions asked by defense counsel) is risky. Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts. Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.
Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.
