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THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was deprived of his right counsel because defense counsel had become employed by the district attorney’s office at the time of the plea:

It is well established that a criminal defendant’s right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant’s defense becomes employed as an assistant district attorney by the office that is prosecuting the defendant’s ongoing case … . In those circumstances, the defendant and the public are given “the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the [period] of his [or her] active representation of defendant” … . Disqualification is required when there is “the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight” … . “The rule is necessary to prevent situations in which [a] former client[] must depend on the good faith of [his or her] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious” … .

Here, we conclude that defendant’s right to counsel was violated … . The People concede that the attorney who had represented defendant with respect to the misdemeanor charges was employed by the District Attorney’s Office at the time defendant entered into the plea agreement that resolved those misdemeanor charges as well as the felony charges. Thus, on this record, we conclude that there is an “appearance of impropriety and . . . risk of prejudice attendant on abuse of confidence” … , and defendant should not have been required to “depend on the good faith of [his] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship” … . People v Sears, 2020 NY Slip Op 01974, Fourth Dept 3-20-20

 

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STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE MOTHER OF THE ALLEGED CHILD VICTIM SHOULD NOT HAVE BEEN SUPPRESSED; STATEMENTS MADE BY DEFENDANT IN A CLOSED ROOM AT THE SHERIFF’S OFFICE, WHERE DEFENDANT WAS INTERROGATED AND CONFRONTED WITH HIS INCULPATORY STATEMENTS, SHOULD NOT HAVE BEEN SUPPRESSED; ALTHOUGH DEFENDANT WAS INTERROGATED, HE WAS NOT IN CUSTODY (FOURTH DEPT).
THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​
A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT).
THE SOLAR ARRAY IS ATTACHED TO THE COLLEGE’S LAND AND IS THEREFORE TAXABLE REAL PROPERTY; THE ARRAY IS OWNED BY THE INSTALLER, NOT THE COLLEGE, AND IS THEREFORE NOT EXEMPT FROM TAXATION (FOURTH DEPT).
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USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT).
DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

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