Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant’s attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is “whether the motion at issue had more than little or no chance of success.” It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success’ ” … . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a “colorable” motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so … . Although neither the Court of Appeals nor the Appellate Division has defined “colorable” in this context, the term is elsewhere defined as “appearing to be true, valid, or right” (Black’s Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has ” a fair probability or a likelihood, but not a certitude, of success on the merits’ ” … . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15