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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).

The Fourth Department, ordering a suppression hearing, determined defense counsel was ineffective in failing to challenge whether the police were justified in initiating the encounter with the defendant based upon a vague and ambiguous 911 call:

We conclude that the record establishes that defense counsel could have presented a colorable argument that the police officer’s actions were either not justified at the inception of the encounter or otherwise not reasonably related in scope to the circumstances presented (see De Bour, 40 NY2d at 215). Here, the officer’s encounter with defendant was based on a 911 call from a security guard at a nearby restaurant who said that he observed a man who had what “looks like a black phone, but then again . . . looks like a gun.” The security guard provided a description of the individual, and the guard said that he could not be sure, but that he thought the man might have been part of a dispute that had taken place at the restaurant earlier in the day. Notably, County Court held a Huntley hearing at which the arresting officer testified, but the testimony of the officer as well as his body cam footage, which was admitted at the hearing, presented a ” ‘close [question] under [the] complex De Bour jurisprudence’ ” regarding the legality of the police encounter … . People v Wyatt, 2026 NY Slip Op 00720, Fourth Dept 2-11-26

Practice Point: Defense counsel was deemed ineffective for failing to challenge the initial encounter between the defendant and the police. The remedy was remittal for a suppression hearing.​

 

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