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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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GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

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FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL.

The Second Department, after finding the court’s allowing the wearing of T-shirts memorializing the murder victim and three (unpreserved) instances of prosecutorial misconduct harmless individually, the cumulative effect of the “harmless” errors was deemed sufficient to reversed defendant’s conviction:

On the second day of trial, defense counsel advised the Supreme Court that “quite a few members of the deceased’s family are present in the court, they are all wearing T-shirts with his photograph on it, displayed in a fairly prominent position on the front of their T-shirts.” Defense counsel requested that the court instruct the spectators to remove the T-shirts or turn them inside out. After asking the members of the audience to stand up for a moment so as to view the T-shirts, the court stated that there was no basis to limit their right to wear items or make a statement since they had a First Amendment right to do so. The court also stated: “It should be noted that the Court, in viewing the audience, saw nothing outstanding other than T-shirts with some pictures and some words. One of the picture[s] may be of the [victim], I can’t tell from this distance. But, at any rate, that’s my ruling for the record, over counsel’s objection.” * * *

The prosecutor improperly appealed to the jury’s sympathy by eliciting testimony from the victim’s mother that the victim’s wife was expecting a child and expressing sympathy for her loss … . * * *

That error was compounded when, during summation, the prosecutor improperly appealed to the jury’s sympathy by commenting that when the victim left his house on the night in question, he had no idea that he was “never going to see his family again” and “never going to be able to see his girlfriend again,” and stating that it was a “tragedy” that his “24-year-old life was taken away by this man here (indicating), [the defendant]” … . The prosecutor committed misconduct of a different sort during summation when, while playing a surveillance video introduced into evidence at trial, she identified certain barely visible figures on the screen as the victim and the defendant. Throughout the course of these comments, the Supreme Court repeatedly instructed the jury that it alone should assess the video and not rely on the prosecutor’s comments, but the prosecutor persisted in her characterization of the figures on the screen.  People v Holiday, 2016 NY Slip Op 05816, 2nd Dept 8-17-16

CRIMINAL LAW (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/HARMLESS ERROR (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/CUMULATIVE EFFECT OF INDIVIDUAL ERRORS (CRIMINAL LAW, (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)

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CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED.

The Second Department determined: (1) information procured by an attorney’s freedom of information law requests was not protected by work-product privilege; (2) defendants’ conduct during discovery was not willful and contumacious; and (3) an adverse inference instruction was an appropriate sanction for spoliation of evidence. The Second Department offered detailed summaries of the criteria for work-product privilege, sanctions for conduct during discovery, and spoliation of evidence which are worth reading. With respect to attorney work-product privilege, the court wrote:

The CPLR exempts attorney work product from disclosure … . However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . Furthermore, “[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” … .

Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs’ counsel’s] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” … . Cioffi v S.M. Foods, Inc., 2016 NY Slip Op 05741, 2nd Dept 8-10-16

 

ATTORNEYS (CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/PRIVILEGE (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/WORK PRODUCT (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/CIVIL PROCEDURE (WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/DISCOVERY (CIVIL, CRITERIA FOR FINDING WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY CLEARLY EXPLAINED)/EVIDENCE (CIVIL, CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)

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