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COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE.

The Second Department, reversing a consent order, determined Family Court did not take the necessary steps to ensure father wished to waive his right to counsel in this custody/relocation proceeding. Father had indicated he wished to be represented by legal aid. Legal aid informed the court father did not qualify for their services. Father appeared pro se without any further inquiry by the court:

 

Although the order appealed from recites that it was entered on consent, under the particular facts and circumstances of this case, we are not precluded from reviewing whether the Family Court secured a valid waiver of the father’s right to counsel. The Family Court erred in allowing the father to proceed pro se. When the father expressed a desire to have an attorney appointed, the court should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses … . Moreover, the court did not determine whether the father was unequivocally, voluntarily, and intelligently waiving his right to counsel … . Despite the father’s statements at pretrial appearances that he would like to have an attorney appointed, the court presided over the hearing without inquiring into why the father was appearing pro se, or whether he understood the risks and disadvantages of doing so. Matter of Soto v Willis, 2016 NY Slip Op 06505, 2nd Dept 10-5-16

FAMILY LAW (COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/ATTORNEYS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CONSENT ORDER, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)

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HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

The First Department determined defendant’s motion to vacate his conviction (by guilty plea), based upon defense counsel’s failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant’s claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

The issue before us thus turns on whether counsel’s lack of advice on the deportation consequences of defendant’s guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a “reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial” … . … [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of “the very beneficial deal” his counsel had negotiated, the motion court erred in finding that defendant’s claim was not “credible,” given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing … . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

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INSURED NOT ENTITLED TO ATTORNEY’S FEES IN AN AFFIRMATIVE ACTION TO SETTLE THE INSURED’S RIGHTS UNDER THE POLICY.

The Fourth Department, reversing Supreme Court, determined that the plaintiff (the insured) was not entitled to attorney’s fees in an action brought to settle its rights under a policy:

This case is governed by the general rule that attorneys’ fees and other litigation expenses are “incidents of litigation” that the prevailing party may not collect “from the loser unless an award is authorized by agreement between the parties or by statute or court rule” … . Indeed, it is well established that “an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy” … . Here, there is nothing in the insurance policy that obligates defendant to reimburse or indemnify plaintiff for attorneys’ fees incurred by it in prosecuting an action to enforce the property coverage provisions of the policy, nor does plaintiff refer to any statute or a court rule authorizing its recovery of attorneys’ fees from defendant. Zelasko Constr., Inc. v Merchants Mut. Ins. Co., 2016 NY Slip Op 06328, 4th Dept 9-30-16

 

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REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED.

The Fourth Department, over a two-justice dissent, determined the selection of a juror by the defendant, a selection with which defense counsel apparently disagreed, deprived defendant of his right to counsel:

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal” … . “The selection of particular jurors falls within the category of tactical decisions entrusted to counsel, and defendants do not retain a personal veto power over counsel’s exercise of professional judgments” … .

Here, during the part of the jury selection process when the attorneys were exercising peremptory challenges, defense counsel stated “[f]or the record, my client is insisting over my objection to keep juror number 21. So, jurors 20 and 21 will be on the jury.” We agree with defendant that, contrary to the People’s contention, defense counsel “never acceded’ or acquies[ed]’ to defendant’s decision” … . … Consequently, the court denied defendant the “expert judgment of counsel to which the Sixth Amendment entitles him,” and “we cannot say that the error here was harmless beyond a reasonable doubt” … . People v Mckenzie, 2016 NY Slip Op 06288, 4th Dept 9-30-16

CRIMINAL LAW (REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/ATTORNEYS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/JURORS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)

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APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVE HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED.

The Second Department determined the appellant was deprived of her right to counsel. The orders of protection were reversed:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, voluntarily, and intelligently … . In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is knowing, voluntary, and intelligent … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the record supports the appellant’s contention that she was not advised of her right to counsel in accordance with Family Court Act § 262(a). Further, there is no indication on the record that she waived her right to counsel. Under these circumstances, the appellant was deprived of her statutory right to counsel .. . Matter of Osorio v Osorio, 2016 NY Slip Op 06219, 2nd Dept 9-28-16

FAMILY LAW (APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)

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AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.

The Second Department affirmed the sanctions/attorney’s fees awarded for frivolous conduct. The court noted that an aggrieved party need not demonstrate pecuniary loss to warrant an award and an attorney who represents himself defending against frivolous conduct is entitled to an award:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … . * * *

While compensatory sanctions should correspond at least to some degree to the amount of damages, the aggrieved party is not always required to show ” actual pecuniary loss'”… . …

An attorney … , who represents himself, may recover fees for ” the professional time, knowledge and experience . . . which he would otherwise have to pay an attorney for rendering'” … . Board of Mgrs. of Foundry at Wash. Park Condominium v Foundry Dev. Co., Inc., 2016 NY Slip Op 06189, 2nd Dept 9-28-16

 

ATTORNEYS (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/CIVIL PROCEDURE (FRIVOLOUS CONDUCT, AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/FRIVOLOUS CONDUCT (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)

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FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES, CRITERIA EXPLAINED.

The Second Department determined plaintiff’s frivolous conduct (delaying discontinuance) warranted the award of attorney”s fees to the respondent. The court explained the criteria for finding frivolous conduct:

“The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court, in its discretion, to award a party in a civil action reasonable attorney’s fees resulting from frivolous conduct” … . Conduct is frivolous if, inter alia, it is “completely without merit in law” or “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2]…). “In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (22 NYCRR 130-1.1[c]). Hutter v Citibank, N.A., 2016 NY Slip Op 06062, 2nd Dept 9-21-16

CIVIL PROCEDURE (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)/FRIVOLOUS CONDUCT (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)

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PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL.

The Second Department determined pro se defendant was not deprived of his right to counsel when his request for standby counsel was denied. A defendant has no constitutional right to so-called “hybrid” representation:

The defendant contends that he was denied his right to proceed pro se. At the beginning of pretrial proceedings, however, the defendant sought standby counsel to assist in his self-representation. “A criminal defendant has no Federal or State constitutional right to hybrid representation. While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both . . . [, and] a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial” … . However, “[b]ecause a defendant has no constitutional right to hybrid representation, the decision to allow such representation lies within the sound discretion of the trial court” … . Under the circumstances of this case, the County Court providently exercised its discretion in denying the defendant’s request for hybrid representation. People v Neree, 2016 NY Slip Op 06006, 2nd Dept 9-14-16

CRIMINAL LAW (PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL)/ATTORNEYS (CRIMINAL LAW, PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL)/PRO SE (CRIMINAL LAW, PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL)/HYBRID REPRESENTATION (CRIMINAL LAW, PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL)/STANDBY COUNSEL (CRIMINAL LAW, PRO SE DEFENDANT DOES NOT HAVE A CONSTITUTIONAL RIGHT TO STANDBY COUNSEL)

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TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined defendant was deprived of his right to counsel when, after his attorney had been relieved, the judge pressured defendant into providing a DNA sample. The People’s request for a DNA sample came long after the discovery deadline had passed. The defendant ultimately pled guilty to manslaughter and burglary. The First Department vacated the guilty pleas and dismissed the indictment:

The court rejected defendant’s repeated pleas for a lawyer, pressured him into submitting to the DNA test, and incorrectly advised him that he had no argument against the prosecutor’s untimely discovery. The denial of defendant’s repeated entreaties to consult with a lawyer during this critical stage of the proceedings violated his Sixth Amendment rights. The deprivation of his Sixth Amendment rights is of constitutional dimension and is not subject to a harmless error analysis … . The appropriate remedy under the circumstances is to vacate both pleas, and to dismiss the indictment … . People v Smith, 2016 NY Slip Op 05902, 1st Dept 8-25-16

CRIMINAL LAW (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/RIGHT TO COUNSEL (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/DNA SAMPLE (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)

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JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED.

The Second Department, reversing defendant’s conviction, determined the trial judge’s response to a jury note did not comply with Criminal Procedure Law 310.30. The note requested that the court “define clearly acting in concert:”

Here, the jury note requested, among other things, that the Supreme Court “define clearly acting in concert.'” The court did not show the note to the attorneys or read it into the record before formulating a response. In apprising counsel of the contents of that note, the court omitted the words “define clearly” and stated only, “They want acting in concert. I will read that back.” After the jury returned to the courtroom, the court again mischaracterized the note, stating: “[I]t says define acting in concert. Okay, I am going to read my acting in concert and I will read it slow for you.” The court then reread its instructions on acting in concert.

The jury’s request to “define clearly” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” … . The court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error … , which requires reversal of the judgment and a new trial … . People v Gough, 2016 NY Slip Op 05873, 2nd Dept 8-24-16

 

CRIMINAL LAW (JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED)/JURY NOTES (CRIMINAL LAW, JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED)

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