AD2 order dated May 30, 2012, affirming judgment of conviction. Decision below: 95 A.D.3d 1349, 945 N.Y.S.2d 349. Miller (AD dissenter), J., granted leave September 13, 2012.

ISSUE PRESENTED: Whether assigned defense counsel rendered ineffective assistance of counsel at the pretrial suppression hearing by (a) submitting a written motion asking for a hearing that was based on the wrong facts (ones related to some other case), (b) proceeding with the hearing even after admitting he was unprepared, (c) submitting no post-hearing memorandum even after acknowledging one was necessary, and (d) not challenging the hearing court’s clearly erroneous fact-findings. (Assigned counsel: Allegra Glashausser and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006

Issue before the Court: Was pretrial hearing counsel ineffective?

Held: Agreeing with the dissent below, the Court finds that counsel was ineffective. He misstated facts in the written motion, did not marshal the facts for the court, and made no legal argument. The defense "never supplied the hearing court with any legal rationale for granting suppression." Nor did counsel try to correct a significant factual error in the court’s decision. None of these errors, the Court noted, could be explained as strategic, particularly since counsel himself told the court that he couldn’t provide competent representation due to various circumstances. The Court remits for further proceedings on the suppression application, declining to decide the merits of the issue.    

CAL Observes: Interesting here is the discussion of prejudice, as well as the Court’s continuing foregrounding of New York's standard for ineffectiveness, with its emphasis on the fairness of the proceeding. Strickland really seems to be taking a back seat. The Court reversed even though it was not clear that the defendant would ultimately win the suppression issue, even with adequate representation. Instead, the Court found it "unnecessary to decide the merits," noting that the issue was "close," and that its "confidence in the fairness of the proceedings," given the litany of errors, was "substantially undermined."  The Court cited "our meaningful representation standard, which does not invariably require a strict showing of prejudice."