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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

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COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS.

The First Department determined Supreme Court should have conducted an in camera review of documents sought from Morgan Stanley by the petitioner to see whether the documents are privileged under a “common interest privilege.”  Even though a third party, NaturEner, was privy to the documents, and despite a debtor-creditor relationship between Morgan Stanley and NaturEner, because Morgan Stanley and NaturEner shared a common interest in the underlying contract dispute, the common interest privilege may apply:

The common interest privilege is an exception to the rule that the presence of a third party will waive a claim that a communication is confidential. It requires that the communication otherwise qualify for protection under the attorney-client privilege and that it be made for the purpose of furthering a legal interest or strategy common to the parties asserting it … .

We find that Morgan Stanley and NaturEner shared a common interest in their desire to have plaintiff comply with its contractual obligations under the Rim Rock agreements. The fact that respondent and defendant were in a debtor-creditor relationship did not make their interests adverse in all matters and at all times … . Under the circumstances, the court should have ordered an in camera inspection, the limited relief requested in the petition … . Matter of San Diego Gas & Elec. Co. v Morgan Stanley Senior Funding, Inc., 2016 NY Slip Op 01238, 1st Dept 2-18-16

CIVIL PROCEDURE (COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS, PARTIES COOPERATING IN LAWSUIT)/COMMON INTEREST PRIVILEGE (PARTIES COOPERATING IN LAWSUIT)/PRIVILEGE (COMMON INTEREST PRIVILEGE, PARTIES COOPEERATING IN LAWSUIT)

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EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION OF DRUG POSSESSION; WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion by Judge Rivera, determined the evidence supported the jury’s consideration of the “drug factory presumption” re: possession of drugs.  In addition, the Court of Appeals held the decision whether to testify before a grand jury is a strategic decision to be made by the attorney, not the defendant, and, in order to demonstrate ineffective assistance in this context, a defendant must show prejudice. The presence of some loose cocaine on the floor, some baggies and a razor blade was sufficient to trigger the “drug factory presumption”, i.e., a presumption of possession by everyone in close proximity to the cocaine. Without the presumption, there would not have been enough evidence defendant possessed the drugs:

 

While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package[d] or otherwise prepare[d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them … . * * *

While the right to testify before a grand jury is significant and “must be scrupulously protected” …, “a prospective defendant has no constitutional right to testify before the [g]rand [j]ury” … . In contrast to the “constitutional nature of the right to testify at trial” … , the right to testify before the grand jury is a limited statutory right … . Whether to exercise that right is a decision that requires “the expert judgment of counsel” … because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses” — quintessential matters of strategy … . The various risks and benefits that must be considered render the decision of whether to exercise this statutory right “an appropriate one for the lawyer, not the client” … .

In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a “defense counsel’s failure to timely facilitate defendant’s intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel” … . That is, even where no strategy is involved, a defendant must show prejudice … . People v Hogan, 2016 NY Slip Op 01207, CtApp 2-18-16

 

CRIMINAL LAW (EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/EVIDENCE (CRIMINAL, SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/ATTORNEYS (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT)/INEFFECTIVE ASSISTANCE (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE)/GRAND JURY (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE TO SUPPORT INEFFECTIVE ASSISTANCE CLAIM)

IN A FEE DISPUTE, PLAINTIFF-ATTORNEY’S FAILURE TO NOTIFY CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT.

The Second Department determined, in a fee dispute, plaintiff-attorney’s failure to give notice to his client of the client’s right to arbitrate required dismissal of the complaint without prejudice:

 

Except in limited circumstances, where an attorney commences an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client’s right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate or that the dispute is not otherwise covered by the rules governing the resolution of attorney-client fee disputes by arbitration (see 22 NYCRR 137.6…). A plaintiff’s failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, or that fee dispute arbitration is inapplicable to the matter for specified reasons, requires dismissal of the complaint … . Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 2016 NY Slip Op 01160, 2nd Dept 2-17-16

 

ATTORNEYS (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)/ATTORNEY’S FEES (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)

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UNNECESSARILY ALLOWING THE JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER WAS NOT JUSTIFIED BY ANY REASONABLE DEFENSE STRATEGY, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.

The Fourth Department reversed defendant’s conviction, finding he did not receive effective assistance of counsel. Defendant was accused of rape. Although it was not necessary to do so, defense counsel allowed the jury to learn that defendant was a registered sex offender and mentioned the sex-offender status in voir dire, in his opening, during cross-examination and in his closing.  The Fourth Department determined there was no reasonable defense strategy which could justify repeated reference to defendant’s sex-offender status:

 

… [W]e conclude that defense counsel’s strategy, i.e., to allow the jury to know that defendant was a registered sex offender and then argue that the police focused their investigation on defendant because he was a registered sex offender, was based on an obviously false premise. The police focused their investigation on defendant because his DNA profile matched that of the rapist, not because he was a registered sex offender. Moreover, defendant’s DNA profile was in CODIS because he was a convicted felon, not because he had committed a sexual offense. This is not to say that defense counsel pursued an unreasonable defense theory at trial. The theory was that defendant had consensual intercourse with the victim on the same day that she was raped by someone else. In pursuing that theory, however, it was unnecessary for defense counsel to inform the jury that defendant was a registered sex offender. In fact, any chance that the jurors would have believed defendant’s testimony about the intercourse being consensual was likely extinguished once they learned that he had previously committed a sex offense. In short, defendant derived no discernible benefit from the jury knowing that he was a registered sex offender, and was highly prejudiced thereby. People v Stefanovich, 2016 NY Slip Op 01070, 4th Dept 2-11-16

 

CRIMINAL LAW (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)

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TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT RELIEVED DEFENSE COUNSEL ON CONFLICT OF INTEREST GROUNDS BECAUSE A POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the trial judge did not err by relieving defendant’s attorney, over defendant’s objection, on conflict of interest grounds.  The defense attorney, Fisher, worked for New York County Defender Services (NYCDS). Another NYCDS attorney had represented Stephens, who was involved in the same incident which led to the charges against the defendant. Fisher had no knowledge of the facts of Stephens’ case, but, before he learned of the conflict, Fisher had been looking for Stephens during his investigation as a possible witness. Fisher was instructed by his supervisors at NYCDS he could not question Stephens, call Stephens as a witness, or cross-examine Stephens if the People called him. The defendant told the trial judge he was willing to waive the conflict, because he wanted Fisher to act as his attorney, but he wanted to call Stephens as a witness. The trial judge determined the conflict warranted the assignment of new counsel:

 

… [T]he Appellate Division erred in holding that the trial court abused its discretion. Supreme Court appropriately balanced defendant’s countervailing rights, based on the information it had at the time, and reasonably concluded that Fisher could not effectively represent defendant due to NYCDS’s representation of Stephens and the duty of loyalty Fisher’s supervisors were asserting toward that former client. People v Watson, 2016 NY Slip Op 00998, CtApp 2-11-16

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)/ATTORNEYS (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)/CONFLICT OF INTEREST (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)

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LAW FIRM’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED, CRITERIA FOR LEGAL MALPRACTICE WHERE AN ACTION HAS BEEN SETTLED EXPLAINED.

The Fourth Department, reversing Supreme Court, determined defendant’s counterclaim alleging legal malpractice in a divorce proceeding which was settled should have been dismissed. The court explained the malpractice criteria in an action which was settled:

 

Defendant contends, inter alia, that but for plaintiff’s alleged negligence she would have received a more favorable result had she proceeded to trial. Generally, “to recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” … . In a legal malpractice action in which there was no settlement of the underlying action, it is well settled that, “[t]o obtain summary judgment dismissing [the] complaint . . . , a [law firm] must demonstrate that the [client] is unable to prove at least one of the essential elements of its legal malpractice cause of action” … . A settlement of the underlying action does not, per se, preclude a legal malpractice action … . Where, as here, however, the underlying action has been settled, the focus becomes whether “settlement of the action was effectively compelled by the mistakes of counsel” … . Where the law firm meets its burden under this test, the client must then provide proof raising triable issues of fact whether the settlement was compelled by mistakes of counsel, and “[m]ere speculation about a loss resulting from an attorney’s [alleged] poor performance is insufficient” … . Conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the client would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 2016 NY Slip Op 00841, 4th Dept 2-5-16

 

ATTORNEYS (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/LEGAL MALPRACTICE (CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/NEGLIGENCE (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)

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POLICE HAD NO REASON TO DETAIN DEFENDANT-PASSENGER AFTER TRAFFIC TICKET ISSUED TO DRIVER, STATEMENTS SHOULD HAVE BEEN SUPPRESSED; PROSECUTORIAL MISCONDUCT REQUIRED A NEW TRIAL AS WELL.

In reversing defendant’s conviction for criminal possession of a weapon, the Fourth Department determined a new trial was required because defendant’s statements should have been suppressed, and because of prosecutorial misconduct. Defendant was a passenger in a car which was stopped for having a suspended registration. After the driver was given a ticket, defendant asked if he could leave. He was told by the police he could not leave until an inventory search of the car was completed. Defendant’s statements were made subsequently. The Fourth Department held that, once the ticket was given to the driver, the police had no reason to detain defendant further. The Fourth Department addressed the prosecutorial misconduct in the interest of justice (despite the lack of preservation). With respect to prosecutorial misconduct, the court wrote:

 

During cross-examination, the prosecutor questioned the driver of the vehicle regarding an out-of-court conversation between them, asking her whether she came to his office and admitted that the defendant “[tried] to get [her] to come and take the blame for the gun.” After the witness denied for the second time that such a conversation had taken place, the prosecutor rhetorically asked, “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” By challenging the witness with respect to the out-of-court conversation, the prosecutor both improperly interjected his personal opinion as to the truthfulness of the testimony and suggested to the jury that his own, unsworn version of events should be credited … .

In addition, instances of prosecutorial misconduct on summation deprived defendant of his right to a fair trial. The prosecutor improperly denigrated defendant’s case by referring to certain contentions as “[a]ll this nonsense,” made repeated non sequiturs distinguishing the case from the John F. Kennedy assassination, and asserted that the defense was “twisting things” and employing “tricks” … . The prosecutor compounded those statements by consistently commenting on witness credibility, calling the defense witnesses “a cast of characters,” “people com[ing] out of the woodwork,” and specifically referring to one witness as “a piece of work.” The prosecutor accused the defense witnesses of lying, and also argued that one could not believe a certain witness who had a lawyer advising her while testifying, stating that he “couldn’t tell if those were her words or her lawyer’s words when she was talking.” Not only did the prosecutor state his belief that witnesses had lied, he also alleged that the witnesses must have met secretly in order to plan and collude regarding their testimony. That was patently improper … .

In addition to criticizing defendant’s case and witnesses, the prosecutor also engaged in misconduct on summation by suggesting that an acquittal would require the jury to find a conspiracy by law enforcement … , by improperly suggesting that defendant bore a burden of proof … , and by misstating a key point of law regarding detention incident to a traffic stop… , People v Porter, 2016 NY Slip Op 00852, 4th Dept 2-5-16

CRIMINAL LAW (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/EVIDENCE (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/SUPPRESSION (MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/ATTORNEYS (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/PROSECUTORIAL MISCONDUCT (NEW TRIAL ORDERED)

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RIGHT TO TESTIFY BEFORE A GRAND JURY IS NOT A RIGHT RESERVED TO A DEFENDANT, IT IS A STRATEGIC DECISION TO BE MADE BY COUNSEL.

The First Department, in affirming defendant’s conviction, noted that defendant was not deprived of a right to testify before the grand jury when his attorney, against defendant’s wishes, withdrew the notice of intent to testify. The right to testify before the grand jury is not among the rights reserved to a defendant:

 

The court properly denied defendant’s motion to dismiss the indictment, made on the ground that he was deprived of his right to testify before the grand jury when, against defendant’s wishes, his counsel withdrew defendant’s notice of intent to testify. We decline to revisit our prior holdings … that the right to testify before the grand jury is not among the rights reserved to a defendant, but is among the rights whose exercise is a strategic decision requiring “the expert judgment of counsel” … . People v Cintron, 2016 NY Slip Op 00618, 1st Dept 2-2-16

 

CRIMINAL LAW (RIGHT TO TESTIFY BEFORE GRAND JURY IS NOT RESERVED TO A DEFENDANT)/GRAND JURIES (RIGHT TO TESTIFY BEFORE GRAND JURY IS NOT RESERVED TO A DEFENDANT)/ATTORNEYS (CRIMINAL LAW, WHETHER TO TESTIFY BEFORE GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY COUNSEL, NOT DEFENDANT)

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MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED, ANALYTICAL CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the attorney-defendants’ motion to dismiss the malpractice complaint should have been granted. The allegations of malpractice were deemed insufficient and were “utterly refuted” by the documentary evidence submitted. The court explained the analytical criteria:

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence” … . “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … . “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … . Janker v Silver, Forrester & Lesser, P.C., 2016 NY Slip Op 00481, 2nd Dept 1-27-16

ATTORNEYS (MALPRACTICE ALLEGATIONS INSUFFICIENT)/NEGLIGENCE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)/LEGAL MALPRACTICE (ALLEGATIONS INSUFFICIENT)/CIVIL PROCEDURE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)

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