TEMPORARY ROADSIDE DETENTION – New York Appellate Digest https://www.newyorkappellatedigest.com Fri, 04 Dec 2020 19:02:27 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/Favicon-Blue-01-36x36.png TEMPORARY ROADSIDE DETENTION – New York Appellate Digest https://www.newyorkappellatedigest.com 32 32 171315692 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 https://www.newyorkappellatedigest.com/2015/01/02/defendants-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-dissen/ Fri, 02 Jan 2015 19:38:58 +0000 http://newyorkappellatedigest.com/?p=13769 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

 

]]> 13769 County Court’s Suppression of Statements and Fruits of Search Reversed https://www.newyorkappellatedigest.com/2013/06/27/county-courts-suppression-of-statements-and-fruits-of-search-reversed/ Thu, 27 Jun 2013 14:37:32 +0000 http://newyorkappellatedigest.com/?p=29669 The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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