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IN ORDER TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE THE RIGHT TO COUNSEL, THE DEFENDANT NEED NOT BE INFORMED OF HIS MAXIMUM SENTENCING EXPOSURE IN YEARS; THE “SPEEDY TRIAL” TIME ASSOCIATED WITH THE JOINDER OF A CO-DEFENDANT FOR TRIAL IS CHARGED TO THE DEFENDANT, EVEN WHERE THE DEFENDANT HAD NOT YET BEEN ARRAIGNED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion by Judge Rivera, affirming the Appellate Division, determined (1) in order to effectively waive the right to counsel, a defendant need not be informed of his maximum sentencing exposure in years, and (2) the pre-arraignment delay associated with the joinder for trial with a co-defendant is not chargeable to the People:

Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel.

Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a co-defendant. Blue contends this provision does not apply to pre-arraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue’s co-defendant were also chargeable to Blue, even though he had not yet been arraigned. People v Blue, 2024 NY Slip Op 05175, CtApp 10-22-24

Practice Point: A defendant can effectively waive the right to counsel without being informed of his maximum sentencing exposure in years.

Practice Point: Even though defendant had not yet been arraigned, the time associated with joining a co-defendant for trial was chargeable to the defendant.

 

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AFTER TWO MENTIONS OF THE POSSIBLE NEED FOR AN ATTORNEY WHICH DID NOT AMOUNT TO AN UNEQUIVOCAL REQUEST, THE DEFENDANT STATED “THAT’S WHAT I WANT A LAWYER FOR,” HE WAS “SCARED TO TALK,” AND HE “COULD STILL COOPERATE LATER;” THOSE STATEMENTS SHOULD HAVE BEEN UNDERSTOOD BY THE POLICE AS A REQUEST FOR COUNSEL (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined statements made by defendant after he invoked his right to counsel should have been suppressed:

In the course of the investigators’ questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began focusing on how he had first encountered the victim earlier that morning, defendant expressed that he did not wish to discuss that subject. After the investigators continued with a couple of follow-up questions on this topic, defendant stated, “that’s what I want a lawyer for.” He then went on to say that he was scared to talk and noted that he could still cooperate with the District Attorney at a later time.

… [We conclude that defendant clearly invoked his right to counsel. Although the first two alleged invocations … did not constitute requests for an attorney, they nevertheless serve to indicate that the subject of obtaining a lawyer was on defendant’s mind while he was being questioned. … [O]nce the interrogation moved to the underlying incident, defendant “articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney” … . Accordingly, any statements made by defendant thereafter should have been suppressed … . People v Lipka, 2024 NY Slip Op 05153, Third Dept 10-17-24

Practice Point: Defendant’s statements “that’s what I want a lawyer for,” he was “scared to talk,” and he “could still cooperate later” constituted an unequivocal request for counsel. Statements made thereafter should have been suppressed.

 

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THE DELAY IN PRODUCING THE DEFENDANT FOR ARRAIGNMENT AFTER THE PEOPLE BECAME AWARE HE WAS IN CUSTODY WAS ATTRIBUTABLE TO THE PEOPLE (A “CONTRADICTORY HOLDING” BY THE FOURTH DEPARTMENT WAS NOTED); DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS ON SPEEDY TRIAL GROUNDS; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the People were not timely ready for trial and defense counsel was ineffective for failing to move for dismissal on “speedy trial” grounds:

… [T]he People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they requested to have the arraignment adjourned to “May 28th, as soon as we can get [defendant] from downstate.” Yet, the record reflects that the People engaged in no efforts to have defendant produced until May 29, when they filed their application pursuant to CPL 560.10, and we reject their generic assertion that this constituted diligent and reasonable efforts … . The People could not proceed to trial without having first arraigned defendant and because the delay was caused by the People’s own inaction, the 16 days from May 13 through May 29 are chargeable to the People, thus exceeding the seven days remaining on the speedy trial clock. As such, we conclude that the People were not ready for trial within the applicable six-month statutory period … .

Having concluded that defense counsel failed to make a meritorious speedy trial motion, we must determine whether this failure, alone, was so egregious and prejudicial as to amount to ineffective assistance … . We reject the People’s contention that this speedy trial motion involved the resolution of various novel and complex issues … , as it has long been settled in this Department that CPL 560.10 (1) (a) imposes upon the People a “responsibility to petition the trial court for an order producing defendant for ‘arraignment or prosecution’ ” … — a principle which is not diminished by the Fourth Department’s contradictory holding in People v Taylor (57 AD3d at 1518-1519 …). As such, and noting that the timeline underlying the speedy trial analysis is uncontroverted, we find that defendant was denied meaningful representation due to defense counsel’s failure to pursue a meritorious speedy trial motion and, thus, his motion to vacate should have been granted … .. Lastly, as the time to prosecute defendant under this indictment has expired, the indictment must be dismissed. People v Shuler, 2024 NY Slip Op 05154, Third Dept 10-17-24

Practice Point: In the Third Department [but apparently not in the Fourth Department (People v Taylor (57 AD3d at 1518-1519)?] any delay in producing a defendant for arraignment after the People become aware the defendant is in custody is attributable to the People.

Practice Point: Defense counsel’s failure to move to dismiss on speedy-trial grounds is ineffective assistance.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR AN INTOXICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the denial of defendant’s request for the intoxication jury instruction was reversible error:

… County Court improperly refused to instruct the jury as to the defense of intoxication. “An intoxication charge is warranted if, viewing the evidence in the light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . The charge should be given when there is “evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant’s ability to form the necessary criminal intent” … . It is true that more is required than “a bare assertion by a defendant that he was intoxicated,” but the threshold to demonstrate entitlement to the charge is nevertheless “relatively low” … . We find that the evidence presented at trial regarding defendant’s consumption of alcohol during the afternoon and evening on the date in question easily surpassed this low bar. People v Smith, 2024 NY Slip Op 05158, Third Dept 10-17-24

Practice Point: The evidence of defendant’s consumption of alcohol was more than sufficient to warrant instructing the jury on the intoxication defense.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the denial of defendant’s request for a cross-racial identification jury instruction was reversible error:

As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification” … . Here, at the close of proof, defendant requested that the jury be given a cross-racial identification instruction pursuant to Boone. County Court denied his request noting, among other things, that in the present case, the identifying witness … knew defendant. County Court, however, misinterpreted the Boone standard and erred in denying defendant’s request for a cross-racial identification jury instruction upon defendant’s request for same … . People v Alexander, 2024 NY Slip Op 05160, Third Dept 10-17-24

Practice Point: Where the witness who identifies the defendant as the perpetrator and the defendant appear to be of different races, defendant’s request for a cross-racial identification jury instruction must be granted.

 

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IN THIS “ATTEMPTED CRIMINAL POSSESSION OF A WEAPON” AND “FALSIYFING BUSINESS RECORDS” PROSECUTION, THE PEOPLE DID NOT PROVE DEFENDANT WAS SUBJECT TO A RESTRAINING ORDER ISSUED AFTER A HEARING OF WHICH HE HAD NOTICE AND IN WHICH HE COULD HAVE PARTICIPATED; THEREFORE THE PEOPLE DID NOT PROVE HIS ANSWERING “NO” TO THE QUESTION WHETHER HE WAS SUBJECT TO A RESTRAINING ORDER WAS FALSE; CONVICTIONS REVERSED (THIRD DEPT). ​

The Third Department reversed defendant’s “attempted criminal possession of a weapon” and “falsifying business records” convictions as against the weight of the evidence. Defendant, when attempting to purchase a shotgun, answered “no” to the question whether he was subject to a court order. Although restraining orders were produced by the People, there was no proof any restraining order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” as required by 18 USC 922 (g) (8) (an element of the charged offenses):

… [T]he People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was “prohibited by law” (Penal Law § 265.17 [1]). People v Rock, 2024 NY Slip Op 05162, Third Dept 10-17-24

 

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THE NEARLY THREE-YEAR GAP BETWEEN PLAINTIFF’S KNEE SURGERY AND HIS SEEING THE SURGEON TO COMPLAIN OF KNEE PAIN DID NOT PRECLUDE THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact about whether the continuous treatment doctrine applies to render the action timely. Plaintiff had knee surgery and did not see the surgeon again for nearly three years when he experienced pain. He had not seen any other orthopedic surgeons in the interim:

Defendants fail to establish that plaintiff’s claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of “an ongoing relationship of trust and confidence between the patient and physician,” the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation … . The 34-month gap between the one-year postoperative follow-up visit after plaintiff’s right total knee replacement and her next complaint to defendant Dr. Steven B. Haas, M.D. about pain in his right knee does not prevent application of the doctrine as a matter of law, as plaintiff visited no orthopedic surgeon other than defendant Dr. Haas during that period, and she returned to Dr. Haas to address increased pain in her right knee, which even he determined would require revision surgery. Karanevich-Dono v Haas, 2024 NY Slip Op 05137, First Dept 10-17-24

Practice Point: Plaintiff had knee surgery and did not see the surgeon again for nearly three years to complain of knee pain. Plaintiff did not see any other orthopedic surgeon in the interim. There was a question of fact whether the continuous treatment doctrine applied to render the medial malpractice action timely.

 

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THE WARRANT ENTITLING PLAINTIFF TO MORE THAN 1100 SHARES OF DEFENDANT CORPORATION’S STOCK WAS APPENDED TO PLAINTIFF’S EMPLOYMENT CONTRACT WITH DEFENDANT; THE TWO CONTRACTS DID NOT MERGE AND ANY ALLEGED BREACH OF THE EMPLOYMENT CONTRACT BY PLAINTIFF DID NOT PRECLUDE THE ENFORCEMENT OF THE WARRANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirming Supreme Court, determined that the Warrant was a separate contract entitling plaintiff to 1,148 shares of defendant corporation, SPI. SPI argued the Employment Contract and the Warrant merged forming a single contract and plaintiff’s breach of the Employment Contract precluded recovery on the Warrant. The First Department held that the fact that the Employment Contract was appended to the Warrant was not enough to demonstrate the two contracts merged:

SPI argues that appending the Employment Agreement to the Warrant demonstrates integration of the two agreements, or at a minimum raises a factual issue, relying on Starr Indem. & Lia. Co. v Brightstar Corp. (388 F Supp 3d 304 [SD NY 2019]). The argument is unavailing because it is based on a misreading of Starr Indemnity. That decision held that, to incorporate a document into another agreement, “[n]o particular mode of reference is necessary for that purpose; any language which indicates the intent that the two shall make one instrument, or a physical annexing of the one to the other, in a manner or under circumstances [*6]showing clearly such intent, is sufficient” … . SPI overlooks the element of intent in its argument, basing its position solely on the fact that the Employment Agreement is attached to the Warrant. The mere fact that the Employment Agreement is appended to the Warrant is insufficient, standing alone, to demonstrate incorporation. Absent from the Warrant is any contractual language indicating a clear and unequivocal intent to incorporate and integrate the Employment Agreement. Instead, the Warrant simply states without qualification that plaintiff and SPI had entered into the annexed Employment Agreement, and fails to set forth any language providing for integration of the two agreements … . O’Connor v Society Pass Inc., 2024 NY Slip Op 05141, First Dept 10-17-24

Practice Point: The fact that one contract is appended to another, standing alone, is not enough to demonstrate the two contracts merged or were integrated.​

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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THE NYS DEPARTMENT OF HEALTH’S (DOH’S) UPDATED GUIDELINES WHICH PROHIBIT PHYSCIANS WHO TREAT CANCER PATIENTS FROM DISPENSING MEDICATIONS WHICH ADDRESS THE SIDE EFFECTS OF CANCER TREATMENTS ARE “IRRATIONAL” (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the NYS Department of Health’s (DOH’s) definition of “oncological protocol” was irrational. The petitioner provides physician-care to cancer patients, including Medicaid recipients. Physicians who provide care to cancer patients can dispense medications (72-hour supplies) pursuant to the DOH’s “oncological protocol.” In the past, petitioner was dispensing medications which addressed the side effects of cancer treatments, including nausea, pain, vitamins, antibiotics and antipsychotics. Under the 2021 update to the DOH’s guidelines, the oncological protocol no longer covered medications which address the side effects of cancer treatments. That update was deemed “irrational” by the Third Department:

The record before us is replete with evidence of industry guidelines and authoritative medical literature strongly suggesting that respondents’ definition may inhibit the provision of adequate healthcare to oncology patients. This includes evidence of the need for ancillary or concomitant administration of medications presumably excluded from the definition in order to enhance the effects of cancer treatments and/or prevent fatal complications arising therefrom. That evidence also clearly contemplates supportive care medications being administered as part of cancer treatment regimens in order to address the often debilitating side effects of such treatment. Given the complete absence of any medical basis for the line drawn here, and guided by the Legislature’s intent to ensure that its general prohibition against prescriber-dispensing did not unreasonably impede the provision of adequate healthcare services in the context of oncology, we cannot find that the definition of oncological protocol before us is rational. Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 2024 NY Slip Op 05165, Third Dept 10-17-24

Practice Point: Here the Third Department deemed the Department of Health’s guideline which prohibited physicians who treat cancer patients from dispensing medications which address the side effects of cancer treatments “irrational” and therefore unenforceable.

 

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