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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense Counsel’s Failure to Move to Suppress Statements, to Challenge Search Warrants, to Request Discovery and to Object to the Conduct of the Prosecutor Raised Questions of Effective Assistance

The Court of Appeals determined questions about the effectiveness of defense counsel warranted a hearing on defendant's motion to vacate his conviction.  The court found defense counsel's explanation for failing to move to suppress defendant's statements (he was interrogated for 26 hours), failure to challenge search warrants, failure to make certain discovery requests and failure to object to the conduct of the prosecutor, inadequate:

[Defense counsel's] affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant's request for legal assistance was deemed “too late.” Nor did [defense counsel] provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. [Defense counsel] also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether [defense counsel]  had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation … . People v Zeh, 33, CtApp 3-27-14

 

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