People v. Clermont

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This appeal addressed whether the trial court’s denial of Defendant’s motion to suppress a gun should be reversed due to ineffective counsel. Defendant, Jocelyn Clermont, had been walking down the street in a known gang location when a detective in an unmarked police car stopped, got out, and displayed his identification to Defendant. Defendant fled, and, during the chase, the detective testified that Defendant took a gun from his waistband area and threw it to the ground. When the detective arrested Defendant, he retrieved the gun from the yard where it had been tossed. Before trial, Defendant’s counsel moved to suppress the weapon. Defendant’s counsel also made an application to be relieved as counsel three days before the hearing. The trial court required Defendant’s counsel to complete the hearing.

At the hearing, Defendant’s counsel recited a completely different factual scenario of the events leading up to the arrest and seizure of the gun. Counsel also only asked two questions on cross-examination of the detective—the sole witness—and did not call any witnesses or make an opening or closing statement. The trial court immediately denied suppression of the gun. The appellate division affirmed the trial court’s decision, finding that counsel’s representation had not fallen below the constitutional standard. The Court of Appeals, however, remitted the matter to the supreme court for further proceedings on the suppression application and possible reopening of the hearing.

The Court of Appeals explained that its confidence in the fairness of the proceeding had been substantially undermined because Defendant was charged solely with weapon possession, and, if suppression had been granted, the indictment would have been dismissed. Further, the Court reasoned that counsel’s numerous errors were not even part of a legal strategy but simply denied Defendant of meaningful representation. The Court did not need to discuss the merits of suppression to decide ineffective counsel because both parties presented substantial arguments and the issue was close under De Bour jurisprudence. People v. De Bour, 40 N.Y.2d 210 (1976). Therefore, the Court remitted the matter to the supreme court.

Judge Rivera, in her dissent, argued that this issue was not close under De Bour jurisprudence and that it was clear that the gun should have been suppressed as a matter of law. She found that the police lacked reasonable suspicion to approach Defendant just because he had been walking in a gang location and had adjusted his waistband. On the face of the record, Rivera wrote, the issue was clear and should not be remitted to the trial court, but rather the denial motion should be granted and the indictment dismissed.

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2013 WL 5707868, 2013 N.Y. Slip Op. 06806

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