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PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant law firm was entitled to sanctions for the frivolous conduct of plaintiff’s counsel.  Plaintiff’s counsel had repeatedly, including on appeal, made the false allegation that defendant law firm had withdrawn two causes of action which would have been successful. The two causes of action had, in fact, been timely brought by defendant law firm, but were subsequently withdrawn by successor counsel:

… [D]espite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.

There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.

“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above”… .

We also consider that sanctions serve to deter future frivolous conduct “not only by the particular parties, but also by the Bar at large” … . The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.

Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.

The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal … . Boye v Rubin & Bailin, LLP, 2017 NY Slip Op 04239, 1st Dept 5-30-17

 

ATTORNEYS (ETHICS, SANCTIONS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/SANCTIONS (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/ETHICAL VIOLATIONS (ATTORNEYS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/FRIVOLOUS CONDUCT (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/APPEALS (FRIVOLOUS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)

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AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED.

The Second Department determined Family Court’s award of sole legal and physical custody to mother was not supported by the record. The court noted that the preference of the children was not adequately considered:

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“Since the Family Court’s custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record”… .

In this case, the Family Court’s determination awarding the mother sole legal and physical custody of the children does not have a sound and substantial basis in the record. Specifically, the court’s finding that the mother was “better equipped to meet the physical, mental and emotional needs of the children” was not supported by the record. The record also fails to support the court’s determination that the father did not indicate a willingness to co-parent with the mother. In addition, while a child’s expressed preference in a custody proceeding is not determinative, it is some indication of what is in the child’s best interests, particularly where, as here, the court’s interview with the sons demonstrated their level of maturity and ability to articulate their preferences … . Here, although the children indicated a preference for living with the father, the court merely indicated that it understood their positions without explaining its reasons for rejecting them … . Matter of Tofalli v Sarrett, 2017 NY Slip Op 04125, 2nd Dept 5-25-17

 

FAMILY LAW (AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/CUSTODY (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/APPEALS (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)

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MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

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In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

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DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION.

The Fourth Department held the case in reserve to allow County Court to rule on other issues raised in opposition to defendant’s suppression motion, but specifically found County Court’s ruling the statement was admissible as “spontaneous” was error:

“Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and [the statements were] not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed’ ” … . Such statements must be proven to be “spontaneous in the literal sense of that word as having been made without apparent external cause, . . . [and] it must at least be shown that they were in no way the product of an interrogation environment’ ” … . “Rather, [the statement] must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer” … .

Here, defendant’s statement was provoked or encouraged by the presentation or discussion of evidence suggestive of his criminal conduct, and we thus conclude that it cannot be deemed “spontaneous in the literal sense of that word as having been made without apparent external cause” … . “Although there may be other reasons to justify the denial of defendant’s motion, the only issues that we may consider on this appeal are those that may have adversely affected the appellant’ ” … . We therefore hold this case, reserve decision, and remit the matter to County Court to rule upon any other issues raised by the People in opposition to the motion. People v Ibarrondo, 2017 NY Slip Op 03643, 4th Dept 5-5-17

 

CRIMINAL LAW (DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SUPPRESSION (STATEMENTS, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SPONTANEOUS STATEMENTS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)

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IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 

The Fourth Department, reserving on the appeal until County Court rules on other issues related to the suppression of the identification of the defendant, determined County Court erred when it concluded the identification of the defendant by a parole officer viewing a surveillance video was not an unduly suggestive procedure. The Fourth Department first noted that the issue was not preserved for appeal by the motion papers, but was appealable because County Court considered the issue in its findings. The Fourth Department held the procedure unduly suggestive because the parole officer was told who the police were seeking to identify before viewing the video:

… [W]e agree with defendant that, contrary to the court’s determination that “[t]here was no influence or suggestion” by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant … . Instead of requesting the parole officer’s assistance in identifying someone from the video without preemptively disclosing the subject of his investigation, the investigator engaged in a conversation “about her being a parole officer for [defendant].” During the conversation, the investigator “asked [the parole officer] if she was familiar with [defendant].” The parole officer responded that she had “lots of contact” with defendant, so the investigator proceeded to ask her to “come down and view a video.” The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer’s viewing of the video, engaged in … undue suggestiveness … inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant … . People v Gambale, 2017 NY Slip Op 03658, 4th Dept 5-5-17

 

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A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER.

The Fourth Department noted that the sentencing court did not have the power to enhance defendant’s sentence for refusing to sign a waiver of appeal because the plea agreement did not call for a written waiver:

While waiving the right to appeal was a condition of the plea bargain, the execution of a written waiver was not, and thus the court was not empowered to enhance the sentence on that ground … . We therefore modify the judgment by reducing the term of imprisonment from a determinate term of 25 years to a determinate term of 20 years, and the period of postrelease supervision from 5 years to 2½ years, in accordance with the plea agreement. People v Days, 2017 NY Slip Op 03632, 4th Dept 5-5-17

CRIMINAL LAW (A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)/APPEALS (CRIMINAL LAW, WAIVER, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)/WAIVER OF APPEAL (CRIMINAL LAW, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER)

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LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL.

The First Department determined the loss of the stenographic notes for the last day of the bench trial and sentencing did not preclude appeal:

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Although the stenographic notes of the last day of the trial and the sentencing proceeding have been lost and no transcript is available for those dates, a reconstruction hearing sufficed to protect defendant’s right to appeal. The judge’s notes from the last day of trial, the prosecutor’s detailed outline of her summation and trial counsel’s affirmation, which were placed in the record at the hearing, provided an adequate basis to determine whether appealable issues existed … . The fact that this was a nonjury trial, where the factfinder is presumed to have disregarded prejudicial matter … , weighs strongly against the concern that the missing minutes may have revealed appealable issues. People v Zuniga, 2017 NY Slip Op 03264, 1st Dept 4-27-17

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CRIMINAL LAW (LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)/APPEAL (CRIMINAL LAW, LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)/TRANSCRIPT (CRIMINAL LAW, APPEALS, LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)

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COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN.

The Third Department noted that it was improper for County Court to require defendant to waive his right to appeal because there was no agreement associated with his guilty plea:

… [I]it was improper for County Court to require defendant to waive his right to appeal, as the record establishes that “there was no promise, plea agreement, reduced charge, or any other bargain or consideration given to . . . defendant in exchange for his plea” … . As such, defendant’s challenge to the sentence is not precluded. People v Tarver, 2017 NY Slip Op 03079, 3rd Dept 4-20-17

CRIMINAL LAW (COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/APPEALS (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/WAIVER OF APPEAL (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)

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COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL.

The Third Department determined County Count did not have the authority to amend a defective conspiracy count by allowing the People to add an overt act. The court entertained the issue even though it was not preserved and it was not raised on appeal. The Third Department had made the same ruling in the codefendant’s (Placido’s) appeal:

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In connection with Placido’s appeal, this Court has held that count 2 of the indictment was jurisdictionally defective and that County Court lacked the authority to grant the People’s motion to amend that count … ). In light of the fact that count 2 of the indictment was identical in respect to Placido and defendant, it necessarily follows that this Court’s holding in People v Placido … applies with equal force to defendant. Accordingly, notwithstanding the fact that defendant did not raise this issue before County Court and does not raise it on appeal, we exercise our interest of justice jurisdiction and reverse defendant’s conviction for conspiracy in the fourth degree. People v Deleon, 2017 NY Slip Op 02848, 3rd Dept 4-13-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/APPEALS (CRIMINAL LAW, COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/INDICTMENTS (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)

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TRIAL JUDGE’S GRANT OF A TRIAL ORDER OF DISMISSAL IN THIS MURDER CASE WAS ERROR, HOWEVER THERE IS NO STATUTORY AUTHORITY FOR THE PEOPLE’S APPEAL.

The Fourth Department determined the People did not have statutory authority to appeal the grant of a trial order of dismissal after a mistrial had been declared because the jury could not reach a verdict. The Fourth Department explicitly stated that it had reviewed the evidence and found it legally sufficient to support the charge (murder). The trial order of dismissal, then, should not have been granted. But there was no mechanism for the People to appeal the error:

“It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal” … . CPL 450.20, the “exclusive route for a People’s appeal” … , does not authorize this appeal. Contrary to the People’s contention, CPL 450.20 (2) does not provide the statutory basis for this appeal, inasmuch as the order they seek to appeal did not set aside a guilty verdict and dismiss the indictment pursuant to CPL 290.10 (1) (b). Rather, there was no guilty verdict to set aside, and the order was issued pursuant to CPL 290.10 (1) (a). Thus, the order is not appealable … . We may not “create a right to appeal out of thin air” in order to address the merits “without trespassing on the Legislature’s domain and undermining the structure of article 450 of the CPL—the definite and particular enumeration of all appealable orders” … . Were we able to review the merits, however, we would agree with the People that the court erred in dismissing the indictment. A “review [of] the legal sufficiency of the evidence as defined by CPL 70.10 (1), [while] accepting the competent evidence as true, in the light most favorable to the People,” compels the conclusion that the evidence was legally sufficient to support the charge … . People v Tan, 2017 NY Slip Op 02541, 4th Dept 3-31-17

 

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