Opinion
2014-03-19
The PEOPLE, etc., respondent, v. Chadriek WALKER, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce R. Slevin, and Danit Almog of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce R. Slevin, and Danit Almog of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered December 22, 2011, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by his counsel's failure to seek to reopen a suppression hearing based on facts elicited at trial. Where, as here, an ineffective assistance claim is based on a particular error in counsel's performance, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for counsel's alleged shortcoming ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Baugh, 91 A.D.3d 965, 966, 937 N.Y.S.2d 599). In some instances, “[t]he failure to raise or adequately pursue a viable suppression claim may constitute the ineffective assistance of counsel” ( People v. Cyrus, 48 A.D.3d 150, 160, 848 N.Y.S.2d 67;see People v. Johnson, 37 A.D.3d 363, 364, 830 N.Y.S.2d 546;People v. Donovan, 184 A.D.2d 654, 655, 585 N.Y.S.2d 70). However, “[a] lawyer is not ineffective for failing to make a motion that is unlikely to succeed” ( People v. Ennis, 41 A.D.3d 271, 274, 839 N.Y.S.2d 720,affd. 11 N.Y.3d 403, 872 N.Y.S.2d 364, 900 N.E.2d 915,cert. denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301;see People v. Cromwell, 99 A.D.3d 1017, 952 N.Y.S.2d 302;People v. Mack, 91 A.D.3d 794, 795, 936 N.Y.S.2d 320).
Here, the defendant failed to show that there was no legitimate reason for defense counsel's failure to move to reopen the suppression hearing based on certain testimony elicited at trial. The alleged new facts pertained to circumstances surrounding his arrest, of which the defendant is presumed to have had knowledge before the suppression motion was decided ( see People v. Davis, 103 A.D.3d 810, 812, 962 N.Y.S.2d 174;People v. Kneitel, 33 A.D.3d 816, 822 N.Y.S.2d 602,cert. denied 552 U.S. 907, 128 S.Ct. 249, 169 L.Ed.2d 183;cf. People v. John, 38 A.D.3d 568, 569, 832 N.Y.S.2d 238). Moreover, since the police had an objective credible reason to request information from him ( see People v. Wighfall, 55 A.D.3d 347, 866 N.Y.S.2d 625; People v. Lightfoot, 22 A.D.3d 865, 866, 803 N.Y.S.2d 188;People v. Williams, 16 A.D.3d 151, 790 N.Y.S.2d 458;People v. Crawford, 279 A.D.2d 267, 719 N.Y.S.2d 18;People v. Greene, 271 A.D.2d 235, 236, 705 N.Y.S.2d 370), the defendant could not have established that the alleged new facts were likely to change the original ruling since he would not have been entitled to suppression of the physical evidence based on the trial testimony either ( see People v. Davis, 103 A.D.3d at 812, 962 N.Y.S.2d 174;People v. Whaley, 70 A.D.3d 570, 572, 895 N.Y.S.2d 78;People v. Sylvain, 33 A.D.3d 330, 331, 821 N.Y.S.2d 588). Under the circumstances of this case, defense counsel reasonably could have concluded that a motion to reopen the suppression hearing would have been futile. Accordingly, counsel's decision not to make such a motion did not deprive the defendant of meaningful representation ( see People v. Cromwell, 99 A.D.3d at 1017, 952 N.Y.S.2d 302;People v. Mack, 91 A.D.3d at 795–796, 936 N.Y.S.2d 320;People v. Whaley, 70 A.D.3d at 572, 895 N.Y.S.2d 78). MASTRO, J.P., DILLON, LEVENTHAL and DUFFY, JJ., concur.