Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15