Issue: Was counsel ineffective in failing to move to suppress on the grounds that the police violated knock-and-announce rules?

Holding: Applying its “single error” rule, the Court held that the single error here was not ineffective because it was not “so clear cut and dispositive that no reasonable lawyer would have failed to assert it.” The United States Supreme Court had rejected the application of the exclusionary rule to knock-and-announce violations and no appellate authority had reached a different conclusion under New York law. A single failure to raise a “novel” argument that is not grounded in “clear appellate authority” is not ineffective assistance, the Court held.

Judge Rivera’s concurrence (joined by Judge Halligan and the Chief Judge) argued that, as the Second Circuit has warned, New York’s single-error approach to IAC claims is flawed because it could cause a court to ignore a single prejudicial error because counsel otherwise performed competently. See Rosario v. Ercole, 601 F.3d 118 (2d Cir. 2010). In response to Judge Rivera’s concurrence, the Hayward majority clearly holds that reliance on counsel’s “overall performance” is impermissible:

But as our cases demonstrate, a single, sufficiently egregious and prejudicial error will constitute ineffective assistance of counsel, despite an otherwise competent performance. In cases decided after Rosario, the Second Circuit has repeatedly acknowledged that our state standard for ineffective assistance of counsel “is not contrary to Strickland.” Indeed, in Rosario itself, Judge Wesley, writing for the majority, correctly reasoned that if a court misunderstood “the New York standard and look[ed] past a prejudicial error as long as counsel conducted himself in a way that bespoke of general competency throughout the trial,” it “would produce an absurd result inconsistent with New York constitutional jurisprudence and the mandates of Strickland.” The concurrence fails to demonstrate that the widespread misunderstanding of our single-error standard of which federal jurists warned in the nearly 15–year–old Rosario decision has since come to pass.

[Also], no such misunderstanding has occurred here. We have not relied to any extent on counsel's overall competent performance . . .

011

CAL Observes: Hayward is groundbreaking because it finally—and unequivocally— does away with the “overall performance” standard that has long dominated New York IAC jurisprudence. Appellate defenders are familiar with the tedious drill here: we argue ineffectiveness and the government responds with a laundry list of everything counsel did in the case (sometimes even referring to attorney performance in other cases!). In turn, the government asks the court to tally up every single thing counsel did (the good and the bad) and then guess, on balance, whether counsel’s performance seemed “meaningful.” The Court of Appeals has long endorsed this arbitrary overall- competency approach. See, e.g., People v. Henry, 95 N.Y.2d 563, 56566 (2000) (relying on counsel’s “competency in all other respects”), habeas relief granted by Henry v. Poole, 409 F.3d 48 (2d Cir. 2005). The Second Circuit, on the other hand, in Rosario, dubbed this approach “absurd” because it would allow a court to ignore a single error that satisfied Strickland’s deficient-performance/prejudice standard simply because counsel did other things well. 601 F.3d at 124-26.

The Hayward majority has now abandoned a general-competency approach once and for all, effectively overruling prior Court of Appeals law. So, while the majority doubled down on the single-error test, confirming that an attorney does not provide deficient performance by omitting an argument that, although logical—is not backed by “clear appellate authority”— the majority kicked the general-competency standard. Good riddance.

Judge Rivera’s concurrence also highlights a potential area for litigation: under Strickland, counsel can be ineffective where, although the omitted argument was not backed by current appellate authority, it was “sufficiently foreshadowed” by existing law. “Effective advocacy under the New York Constitution might well require lawyers to advance some less-than-clear-cut claims.” Where trial counsel failed to raise a good argument for no strategic reason, that omission may be deficient performance under the Hayward concurrence even if the argument was not yet accepted by an appellate court.