        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1251
KA 10-01192
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARKUS J. BARBER, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered October 26, 2009. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree and
criminal possession of a weapon in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, the motion to
suppress defendant’s statements to the police is granted and the
matter is remitted to Monroe County Court for further proceedings on
the indictment in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him, upon his plea of guilty, of
murder in the second degree (Penal Law § 125.25 [1]) and two counts of
criminal possession of a weapon in the second degree (§ 265.03 [3]).
We note at the outset that, as the People correctly concede, defendant
did not waive his right to appeal.

     We agree with defendant that County Court erred in denying his
motion to suppress the statements he made to the police after he had
invoked his right to counsel. “Whether a particular request [for
counsel] is or is not unequivocal is a mixed question of law and fact
that must be determined with reference to the circumstances
surrounding the request including the defendant’s demeanor [and]
manner of expression[,] and the particular words found to have been
used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the
testimony at the suppression hearing established that, before
defendant was informed of his Miranda rights at the police station,
defendant asked a police officer to retrieve the telephone number of
defendant’s attorney from defendant’s wallet. The hearing testimony
further established that an investigator acknowledged defendant’s
request but asked defendant to continue speaking with the police.
That testimony was confirmed by a videotaped interview submitted at
the hearing as an exhibit. “ ‘[V]iewed in context of the totality of
                                 -2-                          1251
                                                         KA 10-01192

circumstances, particularly with respect to events following
[defendant’s request for his attorney’s phone number]’ ” (People v
Twillie, 28 AD3d 1236, 1237, lv denied 7 NY3d 795), we conclude that
defendant unequivocally invoked his right to counsel and that his
statements should have been suppressed (see People v Porter, 9 NY3d
966, 967; People v Esposito, 68 NY2d 961, 962). We therefore reverse
the judgment of conviction, vacate the plea and grant defendant’s
suppression motion, and we remit the matter to County Court for
further proceedings on the indictment.

     Defendant further contends that the court should have suppressed
the gun found on his person at the time of his arrest because it was
obtained as the product of an unlawful detention. That contention is
not preserved for our review because defendant failed to move to
suppress such evidence (see People v Price, 112 AD3d 1345, 1345-1346;
People v Watson, 90 AD3d 1666, 1667, lv denied 19 NY3d 868). We agree
with defendant, however, that he was denied effective assistance of
counsel based on defense counsel’s errors with respect to suppression
(see generally People v Hobot, 84 NY2d 1021, 1022). We note that
defense counsel moved to suppress evidence seized from defendant’s
residence although there was no indication that any evidence was
seized therefrom but failed to move to suppress the gun found on
defendant’s person. The record establishes that defendant was
arrested after a police officer observed defendant and three other
individuals standing “approximately 8-10 houses away” from the
location of reported gunfire. According to a police report, “[f]or
officer safety purposes, [the officer] ordered [defendant and the
other three individuals] to the ground and they were taken into
custody,” and a police officer found defendant in possession of a
loaded weapon. There is no indication in the record on appeal that
the police had a founded suspicion that defendant and his companions
were the source of the gunfire or were involved in any other criminal
activity (cf. People v Hightower, 261 AD2d 871, 871, lv denied 93 NY2d
971). On the record before us, we conclude that there are no
strategic reasons for moving to suppress evidence that did not exist
while failing to move to suppress a gun that was seized from
defendant’s person and that was the factual basis for the charges in
the indictment (see generally People v Benevento, 91 NY2d 708, 712-
714). We further conclude that defense counsel’s errors prejudiced
defendant and deprived him of the right to effective assistance of
counsel (see generally Hobot, 84 NY2d at 1022). We therefore direct
that the further proceedings on remittal should include a motion to
suppress physical evidence if appropriate (see generally People v
Mezon, 80 NY2d 155, 160). In light of our determination, we do not
address defendant’s remaining contentions.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
