People v. Strempack

Mahoney, P. J. Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 2, 1985, convicting defendant upon her plea of guilty of the crime of attempted criminal possession of a controlled substance in the fourth degree. [800] Defendant and another individual were arrested for trespassing after they had barricaded themselves in the bathroom of a large residence located on a private estate. Defendant was generally incoherent and was exhibiting bizarre behavior. Both individuals were placed in a police car. As the parties were driving away in the police car, they passed a vehicle which defendant volunteered was hers. She stated that the caretaker of the estate had wanted the vehicle removed, and that the keys were in the vehicle. Defendant also volunteered that the vehicle contained drugs belonging to her companion. The police officers searched the vehicle, and found quantities of cocaine, methadone and other drugs, along with two weapons. Defendant was arrested for trespassing and was later indicted and charged with several counts of criminal possession of a controlled substance and criminal possession of a weapon. Defendant pleaded guilty to a reduced charge of attempted criminal possession of a controlled substance in the fourth degree and was sentenced to a five-year term of probation. This appeal by defendant ensued. Defendant contends that she was denied the effective assistance of counsel because her attorney failed to move to suppress the evidence seized from the vehicle. The focus of inquiry when such an issue is raised is whether the defendant received meaningful representation (People v Baldi, 54 NY2d 137, 147). It is inappropriate to second-guess an attorney’s legitimate strategic and tactical decisions. This is especially true where a guilty plea is involved, because of the practical aspects of the give and take of plea negotiation. Thus, all of the circumstances must be taken into account. Further, it must be recognized that a plea offer made by a prosecutor early in a criminal proceeding will not normally remain open indefinitely. The terms will likely be changed due to developments in the case. Thus, while a guilty plea does not preclude inquiry into the effectiveness of defense counsel in making pretrial motions (see, People v Ferguson, 114 AD2d 226), the fact that a favorable plea bargain was struck is a factor to be considered (see, People v Lewis, 116 AD2d 778, lv denied 67 NY2d 885). In the instant case, defendant’s attorney made the appropriate motions to determine defendant’s competency to stand trial. After defendant was found competent, negotiations which resulted in the guilty plea took place. Certainly, based on the facts and circumstances of defendant’s arrest, a motion to suppress the evidence seized from the vehicle would have been in order. However, defendant was offered a plea bargain [801] with no jail time. There is no certainty that said offer would have remained open. Additionally, while there would have been some merit to a suppression motion in this case, it is by no means certain that such motion would have been successful. The Court of Appeals recently upheld a warrantless search of a vehicle where police had probable cause to arrest a defendant with respect to forged prescriptions presented by him to a pharmacy and the defendant admitted immediately following arrest that his car contained additional forged prescriptions as well as illegally obtained drugs (People v Orlando, 56 NY2d 441). While the facts in the instant case are not identical, still, they would have presented questions of fact for the trial court to resolve. If defendant had been successful on such a motion, it is likely that the charges would have been dismissed. If she lost, however, she would have faced trial or, most likely, a less favorable plea bargain. This case, therefore, is unlike our recent decision in People v O’Connell (133 AD2d 970), where we found that the failure of defense counsel to make a speedy trial motion amounted to the ineffective assistance of counsel. Unlike the instant case, it was clear in O’Connell that the defendant’s speedy trial rights were violated, such that a motion would have been granted and the action dismissed. Here, the merits of a potential suppression motion are not so apparent that the strategy of the defense attorney ought to be second-guessed. We have considered defendant’s remaining contentions and find them without merit. Judgment affirmed. Mahoney, P. J., Casey, Levine and Harvey, JJ., concur.