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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

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Proof Requirements for Criminal Enterprise Explained/Sufficiency of Evidence and Weight of Evidence Review Criteria Explained

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined the Appellate Division had applied the wrong legal standards to its “sufficiency of evidence” and “weight of the evidence” review of defendants’ enterprise corruption convictions.   The Appellate Division concluded “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communication between [the defendants] and any of the … employees in furtherance of the criminal enterprise.”  The alleged criminal enterprise was a company, in which the defendants were principals, which did construction testing (concrete and steel, for example).  It was alleged that the company routinely issued fraudulent certifications and test results indicating the construction materials (used at hundreds of construction sites) complied with the requirements of the city administrative code. The Court of Appeals determined that the structure of the company constituted “evidence of a leadership structure” and communication among the defendants and the company employees (regarding the issuance of fraudulent test results) could be easily inferred from the facts. The Appellate Division had vacated the enterprise corruption convictions.  The Court of Appeals sent the case back to the Appellate Division for a “weight of the evidence” review of the enterprise corruption proof under the correct legal standards.  (The Court of Appeals cannot do a “weight of the evidence” review.)

Sufficiency and weight review are distinct concepts. To determine whether a verdict was based on sufficient proof, a court must “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof” … . Evidence of guilt is legally sufficient if the facts, viewed in the light most favorable to the People, provide a valid line of reasoning and permissible inferences from which the finder of fact could have rationally concluded that the elements of the crime were established beyond a reasonable doubt … .

A legally sufficient verdict, however, may be against the weight of the evidence … . Unlike a sufficiency analysis, weight of the evidence review requires an intermediate appellate court to act, in effect, as a second jury … by rendering its own determination of the facts as proven at trial … .  People v Kancharla, 2014 NY Slip Op 03295, CtApp 5-8-14

 

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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

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Court of Appeals Can Not Hear the Appeal of an Issue Not Preserved by Objection

The Court of Appeals could not hear the defendant’s appeal because the issue was not preserved by an objection or by an express decision on the question by the trial court. “The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing. Moreover, while a general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” …, here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview.” People v Graham, 2015 NY Slip Op 03767, CtApp 5-7-15

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

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Attorney’s Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper—Relevant Law Explained

The Fourth Department, in the context of plaintiff’s attempt to collect a judgment reflecting child support arrears, determined an attorney’s charging lien was appropriately attached to the proceeds of the sale of defendant’s property.  The court rejected the argument that child support payments are exempt from an attorney’s charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney’s charging liens, and noted the exemptions for proceedings before “a department of labor” and an award of alimony or maintenance:

Under the common law, “the attorney’s lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained’ “… . Judiciary Law § 475 “codifies and extends the common-law charging lien” …, by providing an attorney with “a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come” (§ 475 …). The statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action” … . “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action” … .

The only exception contained in the statute is for proceedings before “a department of labor” (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance … . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

No Appeal Lies from a Vacated Order

In the context of a Mental Hygiene proceeding in which respondent was adjudicated a dangerous sex offender requiring confinement, the Third Department determined no appeal lies from a vacated order.  Supreme Court had vacated the order because the Court of Appeals held that antisocial personality disorder, from which respondent suffers, cannot be relied upon to show a mental abnormality within the meaning of Mental Hygiene Law 10.03 (i).  Respondent’s appeal from the vacated order could not be heard. Matter of State of New York v Richard TT., 2015 NY Slip Op 03591, 3rd Dept 4-30-15

 

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Attorney-Defendants Demonstrated the Dismissal of the Complaint Was an Error Which Would Have Been Corrected Had the Plaintiffs Appealed—Therefore There Was No Question of Fact Whether the Actions of the Attorneys Constituted the Proximate Cause of the Damages Alleged

The Second Department determined Supreme Court should have granted summary judgment to the attorney defendants.  The defendants demonstrated that plaintiffs would not have succeeded on the cause of action against the hospital in the underlying medical malpractice action (the defendants had agreed to discontinue the action against the hospital). And the defendants demonstrated that Supreme Court’s dismissal of the complaint for failure to prosecute was an error which would have been corrected had the plaintiffs appealed.  Therefore there was no question of fact whether the actions of the defendant attorneys proximately caused the alleged damages:

Here, the defendants established, prima facie, that the plaintiffs would not have succeeded on the merits of their underlying medical malpractice action insofar as asserted against the Hospital, regardless of whether the defendants consented to the discontinuance … . The defendants’ submissions demonstrated that the Hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts … . …

The defendants also established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since the plaintiffs chose not to appeal from the order that dismissed the complaint insofar as asserted against the other defendants. The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action … . The Court of Appeals has stated that this “likely to succeed” standard “obviate[s] premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow[s] attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result” (Grace v Law, 24 NY3d at 210). By establishing that an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff’s damages (see id.).

Here, the defendants’ submissions demonstrated that the court in the underlying action dismissed the complaint insofar as asserted against the other defendants pursuant to CPLR 3216 … . As the defendants correctly contend, that order would have been reversed on appeal since it was error, as a matter of law, to dismiss the action pursuant to CPLR 3216 where no 90-day demand had been served and where a note of issue had previously been filed and remained in effect … . Furthermore, the defendants adequately demonstrated that dismissal pursuant to CPLR 3404 was inapplicable since the case was not “marked off or stricken from the trial calendar” … . Accordingly, the defendants established, prima facie, that the plaintiffs were likely to have succeeded on appeal in the underlying action and that the asserted malpractice in failing to prosecute the action was a not a proximate cause of the alleged damages … . In opposition, the plaintiffs failed to raise a triable issue of fact … . Buczek v Dell & Little, LLP, 2015 NY Slip Op 03492, 2nd Dept 4-29-15

 

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Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver

The Second Department, in determining defendant’s waiver of appeal was insufficient, noted that signing a written waiver does not cure defects in the court’s on-the-record inquiry about the defendant’s understanding of the waiver:

The record fails to establish that the defendant’s purported waiver of his right to appeal was knowing, voluntary, and intelligent … . An appeal waiver is not valid unless the defendant’s understanding of the waiver is evident on the face of the record … . Here, the trial court’s statement to the defendant that he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver … . The defendant’s execution of a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . People v Little, 2015 NY Slip Op 03567, 2nd Dept 4-29-15

 

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In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained

The Second Department noted that in an appeal from an order made upon the appellant’s default, the only issues which can be reviewed are those which were contested below.  Here only appellants’ request for an adjournment to obtain new counsel was contested, therefore that was the only issue the appellate court could consider.  The court determined the denial of the adjournment request was not an abuse of discretion.  “In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .” The court noted the appellants’ lack of cooperation with their second counsel and their consent to second counsel’s being relieved:

Where, as here, the order appealed from was made upon the appellants’ default, “review is limited to matters which were the subject of contest below” … . Accordingly, in this case, review is limited to the denial of the appellants’ request for an adjournment … .

The granting of an adjournment for any purpose rests within the sound discretion of the court … , and its determination will not be disturbed absent an improvident exercise of that discretion … . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .

Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants’ request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants’ lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel’s request … . Hawes v Lewis, 2015 NY Slip Op 03127, 2nd Dept 4-15-15

 

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