In People v. Strothers, No. 1773/07, Heath Strothers, a man convicted and sentenced to 12 years in prison was granted a new hearing on the Suppression Motion by NY appeals court after his attorney failed to show up to the original suppression hearing on time. The new hearing will decide whether $2,200 seized from Strothers when he was arrested at the scene of a drug deal should have been used as evidence at his trial. Strothers argues that the evidence should have been suppressed because police did not have cause to arrest him because he was not implicated by the wire / phone tapping.
A Manhattan Supreme Court Justice William A. Wetzel (See Profile) denied the motion to suppress, and Strothers was convicted by a jury of drug distribution and conspiracy. Jose Concepcion and Edwin Reyes, the other two co-defendants plead guilty.
Strothers appealed, arguing that he had been deprived of his right to counsel because his attorney was late to the hearing on the motion to suppress evidence. The defense lawyer arrived to the hearing on a motion to suppress evidence on drug charges partway through the direct examination of a special agent, Jared Forget, who led the task force that arrested Strothers and two other men. The defense attorney was able to cross-examine Agent Forget.
A 4-1 NY Appellate Division, First Department panel held that it did not matter that Defendant’s lawyer did not object to the hearing starting without him or whether or not the attorney’s tardiness affected the outcome of the hearing, the New York Law Journal reports. In support of the majority’s opinion, the Court wrote:
“Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel’s absence and whether the evidence received, or matters discussed with the court, were material to the defense.”
“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial,” (citing Glasser v. United States, 315 U.S. 60, 76 (1942)). “Thus, we reject the People’s argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.”
Strothers was represented on appeal by Andrew Fine of the Legal Aid Society and by Amy Weiner of Kramer Levin Naftalis & Frankel. Ms. Weiner said the decision clarified that “the evidence of the defendant’s guilt has to be extreme, direct and overwhelming in order for the court to overlook that the defendant was deprived of counsel at his suppression hearing.”