People v. Hayward

2024 NY Slip Op 05243

The People & c., Respondent, v. Codie Hayward, Appellant.

No. 83

New York Court of Appeals

October 24, 2024

Kristin Bluvas, for appellant.

Bridget Rahilly Steller, for respondent.

TROUTMAN, J.

Defendant contends that his trial counsel was ineffective for failing to move to suppress the physical evidence recovered by police during the execution of the search warrant on the ground that the police violated the knock-and-announce rule when executing the warrant. We disagree.

We have recognized that a single error in an otherwise competent performance may be sufficiently "egregious and prejudicial as to deprive a defendant of [the] constitutional right to effective legal representation" (People v Keschner, 25 N.Y.3d 704, 723 [2015] [internal quotation marks omitted]; see also e.g. People v Watkins, - N.Y.3d -, 2024 NY Slip Op 02842, *3 [May 23, 2024]; People v McGee, 20 N.Y.3d 513, 518 [2013]; People v Turner, 5 N.Y.3d 476, 480-481 [2005]). To "rise to that level," however, defense counsel's omission "must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy" (McGee, 20 N.Y.3d at 518; see also Watkins 2024 NY Slip Op 02842, at *3; People v Espinosa, 40 N.Y.3d 1065, 1066 [2023]; Keschner, 25 N.Y.3d at 723).

That standard is not satisfied if the "omitted argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel" (Keschner, 25 N.Y.3d at 723 [internal quotation marks omitted]). We have stated that counsel is not ineffective when the success of the argument the defendant claims should have been made by counsel "depended on the resolution of novel questions" (Watkins, 2024 NY Slip Op 02842, *3), or when, at the time of the defendant's trial, "there was no clear appellate authority" supporting the argument the defendant claims that counsel should have made (People v Saenger, 39 N.Y.3d 433, 442 [2023]).

The United States Supreme Court has held that a violation of the knock-and-announce rule by police when executing a search warrant does not require the application of the exclusionary rule under the Federal Constitution (see generally Hudson v Michigan, 547 U.S. 586 [2006]). Defendant acknowledges that no New York appellate decision has decided to the contrary, either by distinguishing Hudson, on the basis of the New York Constitution, or otherwise. Indeed, defendant concedes that the issue is novel. We need not and do not resolve the merits of that question on this appeal. We merely hold that the issue was not so clear-cut and dispositive that no reasonable defense attorney would have failed to assert it, and therefore "defendant's claim of ineffective assistance must fail" (Saenger, 39 N.Y.3d at 442; see Keschner, 25 N.Y.3d at 724).

Our concurring colleagues' reliance on concurring and dissenting opinions in the Second Circuit is puzzling, for three reasons. First, no party to this appeal has argued, either before this Court or the Appellate Division, that New York's single-error standard for ineffective assistance of counsel is irreconcilable with the federal standard or should no longer be followed.

Second, the concern expressed in the concurring and dissenting opinions in both Rosario v Ercole (601 F.3d 118 [2d Cir 2010]) and the denial of en banc rehearing in that case (617 F.3d 683 [2d Cir 2010]) was that the state standard could "act to deny relief despite an egregious error from counsel so long as counsel provides an overall meaningful representation" (617 F.3d at 688 [Pooler, J., dissenting from denial of rehearing en banc]). But as our cases demonstrate, a single, sufficiently egregious and prejudicial error will constitute ineffective assistance of counsel, despite an otherwise competent performance (see e.g. Keschner, 25 N.Y.3d at 723). 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" (Schouenborg v Superintendent, Auburn Correctional Facility, 707 Fed.Appx 20, 22 [2d Cir 2017] [internal quotation marks omitted]; see e.g. Cummings v LaValley, 582 Fed.Appx 49, 50-51 [2d Cir 2014]; Brown v Ercole, 563 Fed.Appx 821, 823-824 [2d Cir 2014]). 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" (Rosario, 601 F.3d at 126). 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.

Third, no such misunderstanding has occurred here. We have not relied to any extent on counsel's overall competent performance, which defendant does not dispute, but instead hold that counsel's single alleged failure did not constitute ineffective assistance because the omitted argument was "not so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it" (Saenger, 39 N.Y.3d at 442 [internal quotation marks omitted]). Our concurring colleagues acknowledge that meaningful representation does not require counsel to raise "every conceivable claim" (concurring op at 7). But there is nothing to indicate that "counsel's failure to seek suppression under the State Constitution based upon a violation of the knock-and-announce requirement" was "sufficiently foreshadowed in existing case law" (concurring op at 6-7).

Defendant's legal sufficiency contention is unpreserved for appellate review, and we have no power to review his contention that the verdict is against the weight of the evidence. The trial court did not err in holding that evidence that defendant had completed an uncharged drug sale hours before the search warrant was executed was relevant to defendant's constructive possession and intent to sell the drugs found in the apartment during execution of the search warrant (cf. People v Telfair, 41 N.Y.3d 107, 114-117 [2023]). The uncharged sale occurred in the same apartment in which police subsequently recovered the drugs defendant was charged with possessing. To the extent defendant challenges the trial court's limiting instruction to the jury on that issue, he failed to preserve that contention for appellate review.

Accordingly, the order of the Appellate Division should be affirmed.

RIVERA, J. (concurring):

I generally agree with the majority's disposition of defendant's challenges to his conviction. However, I would dispose of defendant's ineffective assistance of counsel claim based on the inadequacy of the record on that issue, rather than on the merits. We

have done the same in the past and I see no reason to deviate from that approach in this appeal.

***

Defendant was convicted on one count of possession of heroin with intent to sell and one count of possession of cocaine, after police recovered drugs and drug paraphernalia seized during a search of an apartment where defendant and several other persons were arrested. Defense counsel sought suppression of the seized items on the grounds that the warrant was inaccurate and unreliable. It is undisputed that defense counsel did not raise a claim that the warrant was executed without notice before entry in violation of CPL 690.50 (1). As relevant to this appeal, defendant argued before the Appellate Division that this failure, among others, deprived him of effective representation, in violation of the state and federal constitutions. A divided Appellate Division rejected this claim (see 213 A.D.3d 989 [3d Dept 2023]).

When a defendant claims on direct appeal that they have been deprived of the effective assistance of counsel, but the record is insufficient to decide the issue, the Court usually rejects the claim without prejudice to the defendant raising it in a CPL 440.10 proceeding (see e.g. People v Sims, 41 N.Y.3d 995, 996 [2024]; People v Henderson, 28 N.Y.3d 63, 66 [2016]; People v Brown, 45 N.Y.2d 852, 853-854 [1978]). Moreover, we are bound by the Appellate Division's factual findings so long as they have record support (see e.g. People v Garvin, 30 N.Y.3d 174, 184 [2017]; Arthur Karger, Powers of the NY Court of Appeals § 16:3). Here, the Appellate Division majority had to choose among three possible interpretation of the record: (1) the officers announced themselves before entering the apartment; (2) the officers failed to make themselves known before breaking through the door; or (3) this factual question could not be resolved on the record. The Appellate Division concluded that defendant had "failed" to fulfill his "obligation to establish that a no-knock violation occurred in the first place" because his position was "based solely on conjecture" (Hayward, 213 A.D.3d at 993). The majority explained that the record was silent as to the officers' actions prior to entry and "without resort to inappropriate speculation, it simply cannot be concluded from the record... that the police failed to knock and announce their presence before forcefully entering the apartment" (id.). Whether read as a finding that the officers announced themselves before entering or as a determination that the question could not be resolved, the Appellate Division majority's interpretation has record support. ^[1] Thus, defendant failed to carry his burden and his ineffective assistance of...