You are here: / / DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED...
, ,

DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE LEARNED AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE.

The First Department, over an extensive dissent, determined defense counsel was ineffective for failing to move to reopen the suppression hearing. Defendant was convicted of burglary. A bag of tools was the subject of a suppression motion. At the suppression hearing, the police officer testified the bag was open at defendant’s feet. The suppression court ruled the “burglar’s tools” were properly seized under the “plain view” exception to the warrant requirement. At trial, the building superintendent who stopped the defendant testified the bag was in defendant’s hand and closed when the police arrived. Based on that new information, defense counsel should have requested the reopening of the suppression hearing:

 

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. People v Kindell, 2016 NY Slip Op 00027, 1st Dept 1-7-16

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/EVIDENCE (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/ATTORNEYS (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/INEFFECTIVE ASSISTANCE (FAILURE TO REOPEN SUPPRESSION HEARING BASIED ON NEW EVIDENCE)/SUPPRESSION (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)

You might also like
DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).
Height Differential Need Only Be More than “De Minimis”
WITH THE EXCEPTION OF THE FRAUD CAUSE OF ACTION, THE NONRECOURSE CLAUSE PRECLUDED THIS LAWSUIT AGAINST THE PRINCIPALS OF DEFENDANT CORPORATION; PLAINTIFF HAD WON AN ARBITRATION AWARD AGAINST DEFENDANT FOR OVER $200 MILLION AND BROUGHT THIS ACTION AFTER DEFENDANT FILED FOR BANKRUPTCY (FIRST DEPT). ​
THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) VIOLATED THE LESS IS MORE ACT (LIMA) BY FAILING TO HOLD A RECOGNIZANCE HEARING WITHIN 24 HOURS, AND FAILING TO HOLD A PRELIMINARY HEARING WITHIN FIVE DAYS OF THE EXECUTION OF THE PAROLE-VIOLATION WARRANT; HABEAS CORPUS PETITION PROPERLY GRANTED (FIRST DEPT).
PLAINTIFF STARTED AN ACTION AGAINST DEFENDANT IN NEW YORK; THEN DEFENDANT STARTED AN ACTION AGAINST PLAINTIFF IN ROMANIA; THE RESULTS OF THE ROMANIAN ACTION MAY BE DISPOSITIVE IN THE NEW YORK ACTION; THE NEW YORK ACTION SHOULD HAVE BEEN STAYED PENDING THE OUTCOME OF THE ROMANIAN ACTION, EVEN THOUGH THE NEW YORK ACTION WAS COMMENCED FIRST (FIRST DEPT).
INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT).
CITY AGENCY FAILED TO DEMONSTRATE THE REPORT SOUGHT BY PETITIONERS WAS SUBJECT TO THE INTRA-AGENCY EXEMPTION FROM THE FREEDOM OF INFORMATION LAW (FOIL) BECAUSE THE AGENCY DID NOT PRESENT PROOF THE PREPARER OF THE REPORT WAS RETAINED BY THE AGENCY, SUPREME COURT SHOULD HAVE CONSIDERED PETITIONERS’ REQUEST FOR ATTORNEY’S FEES AS MANDATED BY A 2017 AMENDMENT TO FOIL (FIRST DEPT).
PLAINTIFF’S DISABILITY DISCRIMINATION CAUSES OF ACTION UNDER THE STATE AND CITY HUMAN RIGHTS LAW PROPERLY SURVIVED SUMMARY JUDGMENT; THE DIFFERENT REQUIREMENTS OF THE STATE VERSUS CITY HUMAN RIGHTS LAW IN THIS CONTEXT EXPLAINED IN SOME DEPTH (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

COUNTY COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S APPLICATION... DENIAL OF PAROLE WAS IRRATIONAL; PETITIONER’S PRISON RECORD WAS EXCEPTIONAL...