People v. Rashid Bilal
AD1 order dated June 5, 2014, affirming judgment of conviction. Decision below: 118 AD3d 448, 987 NYS2d 364. Rivera, J., granted leave September 25, 2014. Argued February 11, 2016.
ISSUE PRESENTED: Where defense counsel unjustifiably failed to request a suppression hearing, whether: (a) the merits of the suppression issue were “close” enough after People v. Clermont, 22 NY3d 931 (2013) to warrant a hearing, where police pursued defendant despite only having a generic description of a “black male” in a jacket and where defendant fled from individuals he did not know were police officers, and (b) the reviewing court erred in limiting its assessment of prejudice to the potential outcome of the suppression hearing. (Assigned counsel: Rachel T. Goldberg & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)
Issue before the Court: Was counsel ineffective for failing to move to suppress the gun recovered form the defendant where defense counsel admitted that he had no “strategic or other legitimate explanation[ ]” for his failure to motion the motion.
Held: Yes, “[c]ounsel did not provide defendant with meaningful representation under these particular circumstances. Matter remanded for a suppression hearing.
In finding that counsel was ineffective solely because he had no strategic reason for failing to move to suppress, Bilal left open whether there was a “prejudice” component that the defense must meet when alleging IAC for counsel’s failure to move to suppress. The Court answered that question in People v. Leroy Carver (June 7, 2016), holding that “To prevail on [such] claim, defendant must demonstrate ‘the absence of strategic or other legitimate explanations for counsel’s failure to pursue “colorable” claims.’” Counsel in Carver was not ineffective because the record was “devoid of any indication that counsel could have presented a colorable argument challenging the legality of the traffic stop.” Further, counsel may have had a legitimate strategic decision not to move to suppress. Although Carver lost, we agree that the relatively low “colorable” standard is the correct one to apply.