People v. McBride, 143 A.D.3d 408

Defendant John McBride was convicted after a jury trial of criminal possession of a weapon in the third degree and sentenced as a second felony offender to 3½ to 7 years.
At a pretrial suppression hearing a court found defendant's inculpatory statement admissible, concluding the interaction was noncustodial and Miranda warnings were not required.
At trial the arresting officer testified he had asked McBride for identification, had formed an intent to prevent McBride from leaving, and subjectively considered McBride under arrest at the time McBride made the statement.
Defendant contended trial counsel was ineffective for failing to move to reopen the suppression hearing in light of the officer’s trial testimony.
The Appellate Division considered whether the ineffective-assistance claim was reviewable on direct appeal and, alternatively, whether counsel’s performance was constitutionally deficient and prejudicial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ineffective-assistance claim for failure to move to reopen suppression hearing is reviewable on direct appeal	People: claim involves matters outside the record and is not reviewable on direct appeal	McBride: counsel’s failure is apparent and can be reviewed now	Not reviewable on direct appeal because it involves facts not fully explained by the record; defendant must bring CPL 440.10 to pursue it
Whether counsel’s failure to move to reopen suppression hearing was objectively unreasonable	People: counsel’s conduct was reasonable under the circumstances	McBride: counsel should have reopened hearing after officer’s trial testimony	On the existing record, counsel’s conduct was not shown to be objectively unreasonable
Whether a motion to reopen would likely have been granted	People: trial testimony would not have altered custody analysis because officer’s subjective intent was not conveyed to defendant	McBride: officer’s trial admission showed custody, so suppression likely	Motion would likely not have been granted; officer’s unarticulated intent is irrelevant to custody
Whether counsel’s failure prejudiced defendant under state and federal standards	People: no reasonable probability that reopening would have produced suppression or different outcome	McBride: prejudice existed because statement was admitted	No prejudice shown; defendant received effective assistance under Benevento and Strickland standards

People v. Rivera, 71 N.Y.2d 705 (Ct. of Appeals 1988) (claims relying on facts not in record are not reviewable on direct appeal)
People v. Love, 57 N.Y.2d 998 (Ct. of Appeals 1982) (same)
People v. Benevento, 91 N.Y.2d 708 (Ct. of Appeals 1998) (state standard for effective assistance of counsel)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (federal ineffective assistance standard: deficient performance and prejudice)
People v. Carver, 27 N.Y.3d 418 (Ct. of Appeals 2016) (standards for evaluating reopening of suppression hearings and prejudice)
Berkemer v. McCarty, 468 U.S. 420 (U.S. 1984) (custody inquiry asks how a reasonable person would perceive situation)
Stansbury v. California, 511 U.S. 318 (U.S. 1994) (officer’s subjective, uncommunicated beliefs do not determine custody)
United States v. Mendenhall, 446 U.S. 544 (U.S. 1980) (same principle regarding custody and custody indicators)