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ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT’S SPEEDY TRIAL ARGUMENTS; PROSECUTOR’S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department, reversing defendant's conviction, determined: (1) the robbery conviction was not supported by legally sufficient evidence of an intent to permanently, as opposed to temporarily, deprive the owner of property; (2) the trial court needed to hold a hearing to revisit defendant's motion to dismiss on speedy trial grounds; and (3) the prosecutor's summation, in which the prosecutor repeatedly gave the jury the impression the defendant had the burden of proof and vouched for the People's witnesses, deprived defendant of a fair trial. The decision has substantive discussions of all three issues. With respect to prosecutorial misconduct, an issue reached in the interest of justice, the court wrote:

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . “Rather, [t]here are certain well-defined limits'” … . “Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused'” … .

Here, the prosecutor repeatedly shifted the burden of proof to the defendant, first, by telling the jurors that they could only form a reasonable doubt if they believed the defense offered by the defendant … , and then, by repeatedly telling the jurors or implying that they would have to find that the People's witnesses lied in order to believe that defense … . In essence, one of the prosecutor's themes in his summation was that the jurors had to determine whether they believed the People's witnesses or whether they believed the defendant (who testified), and only if they believed the defendant could they form a reasonable doubt about the defendant's guilt. Such an impression was clearly improper and prejudicial. The prosecutor additionally denigrated the defense … , and vouched for the credibility of the police witnesses based upon their position as law enforcement officers … . People v Cantoni, 2016 NY Slip Op 04232, 2nd Dept 6-1-16

CRIMINAL LAW  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS; PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ROBBERY  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY)/SPEEDY TRIAL (HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)

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DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. On direct, the complainant did not indicate defendant participated in the robbery, but rather was simply present. Defense counsel elicited testimony from the complainant on cross which alleged defendant’s direct participation by pulling her to the ground from behind. Defense counsel erroneously believed complainant had testified in the grand jury that she did not know who pulled her to the ground. However a review of the grand jury minutes found no such testimony, indicating defense counsel was not adequately prepared. In addition, the Second Department held that defense counsel’s failure to object to prosecutorial misconduct during summation amounted to ineffective assistance. With regard to the prosecutorial misconduct, the court wrote:

Defense counsel failed to object to multiple improper summation statements made by the prosecutor. For example, among other improper comments, the prosecutor told the jury that the defendant was “cocky” and “brazen,” and that he “did not deserve” the benefit of the doubt given to him by the complainant on the night at issue; that the deliberations “should not take [the jury] very long”; that defense counsel “harped” on certain facts; that the jury could believe the complainant and not the defendant “who sits [during trial] with his buttoned up shirt hunched over”; and that the jury could rely on the complainant’s testimony “[b]ecause no amount of lawyering or manipulating of her words and the details of that event were going to change the way she told it to [the jury].” The prosecutor also reiterated, without objection, certain improper testimony of the complainant that the trial court had erroneously, over defense counsel’s objection, permitted the jury to hear regarding “how what [the defendant] did changed [the complainant’s] life.” The prosecutor reminded the jury that the complainant “can’t even put her trash out alone anymore,” and because of what the defendant did, the complainant “had to move.” These patently improper comments by the prosecutor vouched for the credibility of the complainant and the strength of the People’s case, appealed to the jury’s sympathy, disparaged the defendant, and denigrated the defense … . As no objection was made to such statements, the jury was able to consider these improper comments of the prosecutor … . People v McCray, 2016 NY Slip Op 04240, 2nd Dept 6-1-16

CRIMINAL LAW (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)

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FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a.

The Second Department determined the assertion of a frivolous claim for punitive damages in a property-injury case warranted the award of $10,000 to each defendant pursuant to CPLR 8303-a:

CPLR 8303-a provides, in pertinent part, that where, as here, a plaintiff has commenced a “frivolous” claim in an action to recover damages for injury to property, “the court shall award to the successful party, costs and reasonable attorney's fees not exceeding ten thousand dollars.” Baxter v Javier, 2016 NY Slip Op 04165, 2nd Dept 6-1-16

CIVIL PROCEDURE (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/FRIVOLOUS CLAIMS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/ATTORNEYS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/PUNITIVE DAMAGES (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW PSYCHIATRIC EXPERT PHOTOS OF VICTIM’S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE’S REVENGE THEORY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined defendant's counsel was not ineffective. Defendant was 15 when he stabbed the 12-year-old victim more than 20 times (the victim survived). The defendant claimed he blacked out and had no memory of the stabbing. The defense called an psychiatrist who testified defendant's mental condition, together with his use of marijuana, made it impossible for the defendant to form the intent to commit the crime. Defense counsel did not show the expert the photos of the victim's wounds and did not inform the expert of the prosecution's theory that the defendant considered the victim a “snitch” and attacked him for that reason:

Whatever the wisdom of counsel's strategy, we cannot say that it was inconsistent with the actions of a reasonably competent attorney. There is no evidence on this record of what information forensic experts ordinarily require in order to arrive at an expert conclusion, or what information the expert requested in this case. Nor is there any evidence of what information an attorney ordinarily would or should provide to such an expert, independently of the expert's request. Therefore, it is not clear that prevailing professional norms would have required counsel to provide the expert with photographs and hospital records of the victim's stab wounds or inform him of the prosecution's theory of the case … . People v Henderson, 2016 NY Slip Op 03649, CtApp 5-10-16

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/INEFFECTIVE ASSISTANCE OF COUNSEL DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)

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COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT’S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED.

The Fourth Department reversed defendant's conviction because the trial judge did not make an adequate inquiry into defendant's complaint about a conflict of interest with defense counsel:

… [T]he court violated [defendant's] right to counsel when it failed to conduct a sufficient inquiry into his complaint regarding a conflict of interest with defense counsel. Prior to commencement of a scheduled suppression hearing, defense counsel informed the court that, based on recent discussions, defendant wanted to request new counsel, and that there had been a breakdown in communication between defense counsel and defendant regarding the issues that they needed to address. Defendant subsequently confirmed that he was requesting new assigned counsel and informed the court that he had filed a grievance against defense counsel resulting in a conflict of interest. '[A]lthough there is no rule requiring that a defendant who has filed a grievance against his attorney be assigned new counsel, [a] court [is] required to make an inquiry to determine whether defense counsel [can] continue to represent defendant in light of the grievance” … . Moreover, “where potential conflict is acknowledged by counsel's admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Tucker, 2016 NY Slip Op 03637, 4th Dept 5-6-16

CRIMINAL LAW (COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)/ATTORNEYS (CRIMINAL LAW, COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION.

The Fourth Department determined defendant's motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged his attorney wrongly told him there was no possibility defendant would be deported based upon the conviction:

In support of his motion, defendant, who is not a United States citizen, submitted an affidavit in which he asserted that his attorney advised him prior to the plea that “there is no way in the world” that he would be deported as a result of his plea because he was being sentenced to less than five years in prison. Defendant further asserted that he would not have pleaded guilty had he been properly advised of the deportation consequences of the plea. According to defendant, he was deported to Jamaica after serving his term of imprisonment.

As the Court of Appeals has held, an affirmative misstatement of the law regarding the deportation consequences of a plea may provide a basis for vacatur of the plea if it can be shown that the defendant was thereby prejudiced, i.e., there is a reasonable probability that the defendant would not otherwise have pleaded guilty … . Here, we conclude that defendant's sworn assertions, if true, entitle him to relief and, because it cannot be said that his assertions are incredible as a matter of law, a hearing is required. We reject the People's contention that the court properly denied the motion because defendant failed to submit an affidavit from his former attorney corroborating his claim … . Where, as here, defendant's “application is adverse and hostile to his trial attorney,” it “is wasteful and unnecessary” to require the defendant to secure an affidavit from counsel, or to explain his failure to do so … . Moreover, contrary to the People's further contention, defendant's assertion that he would not have pleaded guilty if he had been properly advised regarding deportation is sufficient to raise an issue of fact whether he was prejudiced by counsel's alleged error … . People v Bennett, 2016 NY Slip Op 03608, 4th Dept 5-6-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)

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CODEFENDANT, WHO TESTIFIED AGAINST DEFENDANT, AND DEFENDANT REPRESENTED BY MEMBERS OF THE SAME FIRM; IN THIS SITUATION AN INQUIRY TO ENSURE DEFENDANT IS AWARE OF ALL THE FACTS AND CONSENTS IS REQUIRED; MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Fourth Department determined defendant's motion to vacate his conviction should not have been denied without a hearing. Defendant's codefendant, pursuant to a plea bargain, testified against the defendant. The attorney who represented the codefendant and defendant's counsel were members of the same law firm. This situation has the potential of depriving defendant of his right to effective counsel requiring an inquiry by the court to ensure defendant is aware of all the facts and consents:

“Absent inquiry by the court and consent by the defendant, an attorney may not represent a criminal defendant in a trial at which a star prosecution witness is a codefendant whose plea bargain—including the promise to testify against defendant—was negotiated by a partner in the same firm. In these circumstances defendant is denied his right to effective assistance of counsel” … . Thus, a defendant is denied effective assistance of counsel where a member of defense counsel's law firm represents a witness who testifies against defendant at trial unless the court conducts a “Gomberg inquiry to ascertain that the facts had been disclosed to defendant and that he [or she] had made a reasoned decision whether to proceed to trial with his [or her] attorney” … . People v Jackson, 2016 NY Slip Op 03317, 4th Dept 4-29-16


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DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.

The First Department, reversing defendant's conviction, determined defendant should have been present when defense counsel explained his concerns about defendant to the judge and asked to be relieved from representing the defendant. The request was denied:

In conducting a colloquy on defense counsel's request to be relieved, the court erred in failing to permit defendant to provide any input, or to even be present. At least by the time that the substance of counsel's ex parte application became clear, defendant should have been included in the proceeding.

…[T]his proceeding was an “ancillary proceeding[] [at which] he . . . may have [had] something valuable to contribute” … , and thus that his exclusion from it was error. While defendant may not have been able to justify counsel's removal, we cannot say that the “new matter” brought to light at the ex parte proceeding — where counsel revealed the content of a privileged communication with the court, and expressed the belief that defendant's criticisms of his performance were insincere attempts to sow error in the record — implicated “no potential for meaningful input from [] defendant” … on the subject of whether continued representation by counsel was appropriate.

The proceeding also implicated the court's obligation to make a “minimal inquiry” regarding whether the new facts justified substitution of counsel… . People v Moya, 2016 NY Slip Op 03241, 1st Dept 4-28-16


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ATTORNEY WHO HAD PREVIOUSLY PROSECUTED MOTHER FOR ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN APPOINTED TO REPRESENT MOTHER’S CHILDREN IN A CUSTODY MATTER; IN THE ABSENCE OF EVIDENCE MOTHER WAS PREJUDICED BY CONFIDENTIAL INFORMATION MOTION TO VACATE CUSTODY STIPULATION ON CONFLICT OF INTEREST GROUNDS PROPERLY DENIED.

The Third Department determined Family Court should not have allowed an attorney who, as an assistant District Attorney, prosecuted mother for endangering the welfare of a child, to serve as the children's attorney in a custody matter. Mother moved to vacate the custody stipulation, in part based upon the attorney's (Bielicki's) conflict of interest. The fact that Bielicki should not have been appointed, in the absence of evidence of actual prejudice to mother from the use of confidential information, did not warrant vacation of the stipulation:

The mother … argues that Bielicki's representation of the children violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c), which provides that “a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” The rule defines confidential governmental information as “information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public” … . * * *

Bielicki's assignment as attorney for the children in this matter was contrary to the standards set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c) — and, for that reason, Family Court … should not have permitted Bielicki to serve in that capacity — such error, without more, does not warrant vacatur of the stipulation and order. Matter of Tina X. v John X., 2016 NY Slip Op 02874, 3rd Dept 4-14-16


DISQUALIFICATION OF ATTORNEY APPROPRIATE TO AVOID THE APPEARANCE OF IMPROPRIETY.

In a dispute about easements used by property owners to gain access to their properties, the Third Department determined disqualification of an attorney based upon avoiding the appearance of impropriety was appropriate, even though the mandatory conflict-of-interest disqualification criteria may not have been met:

… [E]ven in instances where … disqualification is not mandatory, disqualification nonetheless may be warranted depending upon the particular facts and circumstances of a given case … . In this regard, “[i]t is well settled that an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . To that end, “[a]n attorney may not place himself [or herself] in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . “The disqualification of an attorney is a matter that rests within the sound discretion of the court” … , and the case law makes clear that “[a]ny doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety”… . McCutchen v 3 Princesses & AP Trust Dated Feb. 3, 2004, 2016 NY Slip Op 02703, 3rd Dept 4-7-16


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