THE FAILURE TO MOVE TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT ON THE GROUND THE POLICE VIOLATED THE “KNOCK AND ANNOUNCE” RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE IS “NOVEL” (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge concurrence which argued the case should have been disposed of based on the inadequacy of the record and not on the merits, determined the “single error” attributed to defense counsel did not amount to ineffective assistance. Defendant argued a motion to suppress should have been made on the ground the police violated the knock-and-announce rule when executing the warrant:
We have recognized that a single error in an otherwise competent performance may be sufficiently “egregious and prejudicial as to deprive a defendant of [the] constitutional right to effective legal representation” … . To “rise to that level,” however, defense counsel’s omission “must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy” … .
That standard is not satisfied if the “omitted argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel” … . We have stated that counsel is not ineffective when the success of the argument the defendant claims should have been made by counsel “depended on the resolution of novel questions” … , or when, at the time of the defendant’s trial, “there was no clear appellate authority” supporting the argument the defendant claims that counsel should have made … .
The United States Supreme Court has held that a violation of the knock-and-announce rule by police when executing a search warrant does not require the application of the exclusionary rule under the Federal Constitution (see generally Hudson v Michigan, 547 US 586 [2006]). Defendant acknowledges that no New York appellate decision has decided to the contrary, either by distinguishing Hudson, on the basis of the New York Constitution, or otherwise. Indeed, defendant concedes that the issue is novel. We need not and do not resolve the merits of that question on this appeal. We merely hold that the issue was not so clear-cut and dispositive that no reasonable defense attorney would have failed to assert it, and therefore “defendant’s claim of ineffective assistance must fail” … . People v Hayward, 2024 NY Slip Op 05243, CtApp 10-22-24
Practice Point: A single error by defense counsel may rise to the level of ineffective assistance, but not, as here, where the issue defense counsel failed to raise is deemed “novel.”