SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1204 

KA 10-01363 

PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

LEROY CARVER, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (David

D. Egan, J.), rendered April 22, 2010. The judgment convicted

defendant, upon a jury verdict, of burglary in the second degree (two

counts). 

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: On appeal from a judgment convicting him following a

jury trial of two counts of burglary in the second degree (Penal Law §

140.25 [2]), defendant contends that he was deprived of effective

assistance of counsel. According to defendant, his attorney was

ineffective because, among other reasons, he failed to move for

suppression of evidence obtained by the police following an allegedly

unlawful arrest. We reject that contention. “To prevail on a claim

of ineffective assistance of counsel, a defendant must demonstrate the

absence of strategic or other legitimate explanations for counsel’s

failure to pursue ‘colorable’ claims” (People v Garcia, 75 NY2d 973,

974, quoting People v Rivera, 71 NY2d 705, 709; see People v Willis,

105 AD3d 1397, 1397, lv denied 22 NY3d 960; People v Carnevale, 101

AD3d 1375, 1378-1379). “A single error may qualify as ineffective

assistance, but only when the error is sufficiently egregious and

prejudicial as to compromise a defendant’s right to a fair trial”

(People v Caban, 5 NY3d 143, 152; see People v Atkins, 107 AD3d 1465,

1465, lv denied 21 NY3d 1040). 

Here, the evidence adduced at trial demonstrates that, at

approximately 4:30 on the morning in question, defendant was the front

seat passenger in a vehicle that was stopped in the Village of

Fairport by a police officer who observed an object hanging from the

vehicle’s rear view mirror, in violation of the Vehicle and Traffic

Law. The only other person in the vehicle with defendant was the
-2- 1204 

KA 10-01363 

driver. Neither defendant nor his companion could produce any

identification, and both gave the officer what turned out to be false

names, dates of birth and addresses. The officer noticed that the two

men appeared to be “very nervous and anxious,” and he observed in the

back seat several large duffel bags, black gloves and a laptop

computer. When asked what they were doing in the area, the men said

that they had been sitting in the parking lot of a nearby bar since it

closed several hours earlier. The officer had been patrolling the

village for hours, however, and knew that the parking lot had been

empty since 2:30 a.m. 

The officer told the men to remain in the vehicle while he

returned to his patrol vehicle to run a records check. When the

officer entered the police vehicle, the driver fled on foot. The

officer then ran back to the vehicle, where he observed that defendant

had removed his seat belt and was attempting to exit the vehicle. The

officer detained defendant and conducted a pat frisk, during which the

officer found a digital camera and a tube of lip balm in the coat

defendant was wearing. Upon looking inside the vehicle, the officer

observed a wallet, a second pair of black gloves and a long

screwdriver, all of which were on the floor in front of where

defendant had been seated. While defendant was detained, the police

searched unsuccessfully for the driver, but learned that two houses in

Fairport had recently been burglarized. It was later determined that

the digital camera and lip balm found in defendant’s coat were taken

from the homes that had been burglarized, as was the wallet found in

the vehicle. A search of the vehicle yielded numerous other items of

stolen property. While at the police station, the police took

defendant’s DNA from a discarded cigarette, and then later compared

his DNA to that on the gloves found in the front seat area of the

vehicle. The tests showed that defendant could not be excluded as the

person who wore the gloves, and that it was highly unlikely that

someone other than defendant contributed to the DNA found on the

gloves. 

Defendant contends that his trial attorney was ineffective for

failing to seek suppression of the digital camera, the lip balm and

the DNA evidence. More specifically, defendant contends that he had a

colorable claim that the officer unlawfully arrested him immediately

after the driver fled, and that the evidence constitutes fruit of the

poisonous tree. Defendant further contends that defense counsel had

no strategic or legitimate reason for failing to pursue the

suppression issue. 

As a preliminary matter, we note that the record belies

defendant’s contention that the officer arrested him immediately after

the driver fled; rather, the record establishes that the officer

detained defendant for investigatory purposes (see People v Roque, 99

NY2d 50, 54; People v Gonzalez, 91 NY2d 909, 910). It is well settled

that the police may forcibly stop and detain an individual based on

reasonable suspicion that the individual has committed or is about to

commit a crime (see People v Moore, 6 NY3d 496, 498-499). Here, when

he detained defendant, the officer knew that the driver had fled,

defendant and the driver had given a false answer when asked what they
-3- 1204 

KA 10-01363 

were doing in the area, and neither could produce identification. The

officer had also observed that defendant, like the driver, attempted

to exit the vehicle despite having been directed to remain seated, and

that there were several duffel bags, a laptop computer and a pair of

black gloves in the back seat. The presence of gloves in the vehicle

was unusual given that it was mid-summer. Under the circumstances,

and considering the hour, it was entirely reasonable for the officer

to suspect that defendant was involved in criminal activity, thereby

justifying a detention of defendant for investigatory purposes (see

People v Bolden, 109 AD3d 1170, 1172, lv denied 22 NY3d 1039). In

fact, it would have been unreasonable for the officer to allow the

defendant to walk away, particularly in view of the fact that he could

produce no identification. 

In any event, even assuming, arguendo, that defendant had a

colorable basis to move for suppression of the camera, lip balm and

DNA evidence, we cannot conclude on this record that defense counsel

lacked a legitimate reason for failing to so move. The remaining

evidence demonstrated that defendant was in a motor vehicle containing

numerous items of property that had recently been stolen from nearby

homes, and thus such a motion would not have been dispositive. One

such item was a wallet that was found on the floor in front of where

defendant had been seated, along with a second pair of black gloves

and a long screwdriver. In addition, the evidence established that

the only other person in the vehicle with defendant fled on foot, and

that defendant was attempting to exit the vehicle as well contrary to

the officer’s directive. 

Under the circumstances, defense counsel may legitimately have

concluded that, for defendant to be acquitted, he had to testify at

trial and offer an innocent explanation for his presence in a vehicle

that was full of property that had recently been stolen from nearby

homes. Defendant did in fact take the stand at trial, testifying that

he was asleep in the vehicle while its occupants committed the

burglaries without his knowledge, and that he woke up shortly before

the vehicle was stopped by the police. Notably, a defendant who

testifies at trial may be impeached with suppressed evidence (see

United States v Havens, 446 US 620, 624, reh denied 448 US 911; People

v Haynes, 235 AD2d 365, 365, lv denied 89 NY2d 1012; People v Dash,

126 AD2d 737, 737). Thus, because defendant testified, the jury would

have learned about his possession of the camera and the lip balm even

if defense counsel had successfully moved for suppression of that

evidence. The same is true for the DNA evidence. 

We respectfully disagree with our dissenting colleagues that the

threshold standard to be applied in determining whether an attorney

was ineffective for failing to file a particular motion is “whether

the motion at issue had more than little or no chance of success.” It

is true, as the dissent points out, that the Court of Appeals has

repeatedly stated that “[t]here can be no denial of effective

assistance of trial counsel arising from counsel’s failure to ‘make a

motion or argument that has little or no chance of success’ ” (Caban,

5 NY3d at 152, quoting People v Stultz, 2 NY3d 277, 287, rearg denied

3 NY3d 702). By so stating, however, the Court was not articulating
-4- 1204 

KA 10-01363 

the standard for what does constitute ineffective assistance of

counsel; instead, the Court was explaining what does not constitute

ineffective assistance of counsel. As noted, the Court has made clear

in other cases that the standard to be applied is whether defense

counsel failed to file a “colorable” motion and, if so, whether

counsel had a strategic or legitimate reason for failing to do so

(Garcia, 75 NY2d at 974; Rivera, 71 NY2d at 709). Although neither

the Court of Appeals nor the Appellate Division has defined

“colorable” in this context, the term is elsewhere defined as

“appearing to be true, valid, or right” (Black’s Law Dictionary 301

[9th ed 2009]). Federal courts have described a colorable claim as

one that has “ ‘a fair probability or a likelihood, but not a

certitude, of success on the merits’ ” (San Jose Christian Coll. v

City of Morgan Hill, 360 F3d 1024, 1032; see Axson-Flynn v Johnson,

356 F3d 1277, 1295; see also Combs v Homer-Ctr. Sch. Dist., 540 F3d

231, 246, cert denied 555 US 1138). Here, for the reasons previously

stated, we do not believe that a motion to suppress evidence as the

product of an unlawful arrest would likely have been granted. 

Nor can we agree with the dissent that defendant on appeal

contends that his trial attorney was also ineffective for failing to

challenge the legality of the stop of the vehicle in which he was a

passenger. Defendant’s brief focuses on the legality of the arrest,

not the stop, and it repeatedly states that defendant was the

passenger of a vehicle that was stopped for a traffic infraction

committed by its driver. Defendant never suggests that the driver did

not in fact commit a traffic infraction. In any event, the arresting

officer testified at trial without contradiction that he stopped the

vehicle because he observed an item hanging from the rear-view mirror

and a sticker on the front windshield, both of which constitute

violations of the Vehicle and Traffic Law. If the officer’s testimony

in that regard is true, and there is no basis in the record for us to

conclude otherwise, defendant had no grounds to challenge the legality

of the stop. We note that the dissent also asserts that, rather than

moving for suppression, defense counsel proceeded to trial “on the

specious theory that defendant had passed out in the car and had no

idea that the people he was with shortly before the traffic stop had

committed the burglaries.” That theory, however, was based on

defendant’s sworn trial testimony, and we cannot conclude that defense

counsel was ineffective for allowing defendant to exercise his

constitutional right to testify at trial. 

We have considered the other alleged failings of defense counsel

and conclude that they were not individually or collectively so

significant as to deprive defendant of his right to effective

assistance of counsel. For instance, although defense counsel

understated the significance of the People’s DNA evidence during his

opening statement, we do not perceive how defendant was thereby

significantly prejudiced. To the extent that defendant contends that

defense counsel’s apparent failure to understand the nature of the DNA

evidence may have affected the advice counsel gave to defendant as to

whether to accept the People’s plea offer, such contention is based on

“matters outside the record on appeal and thus is properly raised by
-5- 1204 

KA 10-01363 

way of a motion pursuant to CPL article 440” (People v Frazier, 63

AD3d 1633, 1634, lv denied 12 NY3d 925). In sum, although defense

counsel’s performance at trial was by no means flawless, “[t]he test

is reasonable competence, not perfect representation” (People v

Oathout, 21 NY3d 127, 128 [internal quotation marks omitted]), and

viewing the evidence, the law and the circumstances of the case as a

whole and as of the time of the representation, we conclude that

defendant was afforded meaningful representation (see generally People

v Baldi, 54 NY2d 137, 147). 

Finally, considering that defendant is a predicate felon and that

Supreme Court could have but did not impose consecutive sentences on

the two burglary counts, we perceive no basis upon which to exercise

our power to modify the concurrent sentences as a matter of discretion

in the interest of justice (see CPL 470.15 [6] [b]).

All concur except FAHEY and WHALEN, JJ., who dissent and vote to 

reverse in accordance with the following Memorandum: Inasmuch as

defendant contends that he received ineffective assistance of counsel

under both the federal and state standards, we apply the state

standard for ineffective assistance of counsel (cf. People v McDonald,

1 NY3d 109, 114-115; see generally People v Baldi, 54 NY2d 137, 147). 

Applying that standard here, we conclude that defendant was deprived

of his right to effective assistance of counsel, and we therefore

respectfully dissent.

We first turn to the relevant facts of this case. The record

establishes that defendant was the front seat passenger in a vehicle

that was stopped by a police officer at approximately 4:30 a.m. for an

alleged traffic infraction involving an obstructed windshield. That

traffic stop eventually led to a pat frisk of defendant, which

revealed a digital camera in the breast pocket of defendant’s coat. 

The camera was the property of a Fairport resident whose home had just

been burglarized, and a subsequent search of defendant’s other pockets

revealed many items of property stolen from two houses in Fairport

that had been burglarized that morning. The police also found at

defendant’s feet on the floorboard of the vehicle, inter alia, a

wallet belonging to a burglary victim, black leather gloves, and a

long screwdriver.

Defendant was subsequently arrested and charged with both

burglaries. While defendant was at the police station following his

arrest, the police seized a cigarette butt that defendant had smoked

and discarded, and the DNA on the cigarette matched the DNA on the

gloves found at defendant’s feet in the vehicle. Nevertheless,

defendant’s trial attorney did not seek suppression of the

aforementioned physical evidence. Instead, defendant proceeded to

trial with his trial attorney’s inexplicable misunderstanding that

there was a “one in 66,000 chance” that defendant’s DNA was on the

gloves—the evidence actually showed that the probability of randomly

selecting an unrelated individual who could be a contributor to the

DNA mixtures found on the gloves was less than one in 4,500 for the

left glove and less than one in 6,090 for the right glove—and on the

specious theory that defendant had passed out in the car and had no
-6- 1204 

KA 10-01363 

idea that the people he was with shortly before the traffic stop had

committed the burglaries. 

We next turn to the breadth of defendant’s primary contention on

appeal. Defendant contends that he was denied effective assistance of

trial counsel based on, inter alia, the failure of his trial counsel

to raise a colorable suppression issue. To be sure, as the majority

notes, the thrust of defendant’s contention is that defense counsel

was ineffective for failing to seek suppression of evidence obtained

by the police following defendant’s detention. However, as we read

it, defendant’s brief on appeal leaves open the possibility that his

present contention with respect to ineffective assistance of counsel

embraces the theory that defense counsel was ineffective in failing to

seek suppression of all of the physical evidence against defendant on

the ground that it was seized as a result of an unlawful traffic stop. 

In that vein, we respectfully disagree with the majority that

defendant has conceded that the traffic stop at issue was lawful. 

Although defendant on appeal has acknowledged that a traffic stop

based on the presence of an object obstructing or interfering with the

view of the operator of the vehicle at issue through the windshield

would be lawful (see People v Robinson, 97 NY2d 341, 349; see

also Vehicle and Traffic Law § 375 [30]), in his appellate brief he

was careful to question the impetus for the traffic stop, noting that

such stop was occasioned by what, “according to the [subject]

officer,” were objects that appeared to obstruct the windshield of the

vehicle at issue.

We now turn to the standard of review. The majority implicitly

shuns the rule of this Court articulated in, inter alia, People v

Bassett (55 AD3d 1434, 1437-1438, lv denied 11 NY3d 922) that, to

prevail on a claim for ineffective assistance of counsel based on the

failure to make a motion, a “ ‘defendant must show that the particular

motion, if made, would have been successful and that defense counsel’s

failure to make that motion deprived him [or her] of meaningful

representation.’ ” We explicitly reject it here. In our view, the

rule articulated in Bassett and its antecedent and descendent cases is

rooted in People v Torrence (135 AD2d 1075, 1076, lv denied 70 NY2d

1011), wherein we rejected the defendant’s contention that he was

denied effective assistance of counsel, reasoning that “a dismissal

motion on speedy trial grounds, if made, would not have been

successful.” That conclusion—essentially that the defendant was not

denied meaningful representation because the motion in question would

have failed—is consistent with what is now the prevailing view that an

attorney’s “failure to ‘make a motion or argument that has little or

no chance of success’ ” does not amount to ineffective assistance

(People v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277,

287, rearg denied 3 NY3d 702). 

Bassett, however, stakes a more extreme position. The

circumstances in which counsel will not be ineffective for failing

make a motion have been set forth by the Court of Appeals, i.e., where

the motion has little or no chance of success (see Caban, 5 NY3d at

152), and where there is a “strategic or other legitimate

explanation[] for counsel’s failure to [make] a particular [motion]”
-7- 1204 

KA 10-01363 

(People v Rivera, 71 NY2d 705, 709). In our view, Bassett mandates

that a showing of success is essential to succeed on a claim for

ineffective assistance based on counsel’s failure to make a motion. 

That analytical approach is incompatible with New York’s existing

jurisprudence, and we therefore would no longer follow those cases

that adopt that approach. Rather, we conclude that the appropriate

litmus test here is whether the motion at issue had more than little

or no chance of success and, if so, whether there is no strategic or

other legitimate explanation for the failure to bring that motion (see

Caban, 5 NY3d at 152; Rivera, 71 NY2d at 709; cf. People v Clermont,

22 NY3d 931, 934; People v McGee, 20 NY3d 513, 520; see generally

People v Carnevale, 101 AD3d 1375, 1380-1381). 

Applying that standard here, we conclude that defendant was

denied effective assistance of counsel based on his counsel’s failure

to seek suppression of the evidence seized as a result of the alleged

traffic infraction. We note that the officer who effectuated the

traffic stop allegedly observed the items giving rise to the alleged

vehicle and traffic infractions while the vehicle in which defendant

was a passenger was moving and under the cloak of darkness. Given the

totality of the circumstances here, we conclude that the motion had

more than little or no chance of success (cf. Carnevale, 101 AD3d at

1379 n 2). 

We also conclude that there is no strategic reason or other

legitimate explanation for the failure of defendant’s trial attorney

to seek suppression of the physical evidence seized from defendant’s

person and from the vehicle at issue. As a practical matter, under

the circumstances of this case there was simply no reason to forego

the suppression hearing inasmuch as it would have allowed defendant an

opportunity to examine the officer who effectuated the traffic stop

before trial and to bolt that officer to a narrative of the traffic

stop and the police activity that ensued as a result of that stop. 

More importantly, a “suppression motion could have been dispositive of

the entire proceeding” (Clermont, 22 NY3d at 934), because it is hard

to conceive of how defendant would have been convicted of the

burglaries had the physical evidence been suppressed. In that vein,

we respectfully conclude that the majority’s analysis of what may have

happened at trial and the theories defense counsel may have held with

respect to the path to an acquittal are immaterial inasmuch as the

trial would not have occurred had defendant prevailed upon a motion to

suppress evidence seized as a result of the traffic stop on the ground

that such stop was unlawful. Consequently, under the circumstances of

this case, the failure of defendant’s trial attorney to challenge this

evidence deprived defendant of meaningful representation, and we would

therefore reverse the judgment and grant defendant a new trial. 

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court