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PLENARY ACTION UNDER JUDICIARY LAW 487 ALLEGING ATTORNEYS ENGAGED IN DECEITFUL AND COLLUSIVE CONDUCT DURING A PRIOR CONTRACT ACTION PROPERLY SURVIVED MOTION TO DISMISS.

The First Department determined plaintiff (Melcher) properly brought a plenary action for fraud and deceit against a law firm pursuant to Judiciary Law 487. Plaintiff alleged the attorneys engaged in deceitful and collusive conduct in a prior contract action (the Apollo action) which had been settled. Plaintiff alleged the party-defendant in the prior contract action forged an amendment to the contract and then deliberately damaged the original instrument to obfuscate the forgery. The court rejected “claim-splitting” and “collateral estoppel” arguments because the precise issues raised in the Judiciary Law 487 complaint were not addressed in the prior Apollo action:

 

… [W]e find that under the circumstances presented, it was proper for Melcher to assert a Judiciary Law § 487 claim in a separate action, rather than seeking leave to assert a claim against the attorney defendants in the Apollo action.

Judiciary Law § 487(1) provides, among other things, that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . forfeits to the party injured treble damages, to be recovered in a civil action.” A plaintiff may bring an action to recover damages for attorney deceit regardless of whether the attorney’s deceit was successful … . Further, the plaintiff in a section 487 case may recover the legal expenses incurred as a proximate result of a material misrepresentation in a prior action … . Melcher v Greenberg Traurig LLP, 2016 NY Slip Op 00274, 1st Dept. 1-19-16

ATTORNEYS (PLENARY ACTION FOR DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)/FRAUD (PLENARY ACTION AGAINST ATTORNEYS ALLEGING DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)/JUDICIARY LAW (PLENARY ACTION AGAINST ATTORNEYS ALLEGING DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)

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DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE LEARNED AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE.

The First Department, over an extensive dissent, determined defense counsel was ineffective for failing to move to reopen the suppression hearing. Defendant was convicted of burglary. A bag of tools was the subject of a suppression motion. At the suppression hearing, the police officer testified the bag was open at defendant’s feet. The suppression court ruled the “burglar’s tools” were properly seized under the “plain view” exception to the warrant requirement. At trial, the building superintendent who stopped the defendant testified the bag was in defendant’s hand and closed when the police arrived. Based on that new information, defense counsel should have requested the reopening of the suppression hearing:

 

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. People v Kindell, 2016 NY Slip Op 00027, 1st Dept 1-7-16

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/EVIDENCE (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/ATTORNEYS (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/INEFFECTIVE ASSISTANCE (FAILURE TO REOPEN SUPPRESSION HEARING BASIED ON NEW EVIDENCE)/SUPPRESSION (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)

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DEFENDANT’S REQUEST TO PROCEED PRO SE, MADE ON THE EVE OF TRIAL, WAS NOT UNTIMELY AND SHOULD NOT HAVE BEEN SUMMARILY DENIED ON THAT GROUND, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s request to proceed pro se, made prior to the prosecution’s opening statement, was not untimely and should not have been summarily denied on that ground. A new trial was ordered:

… [T]he judgment of conviction should be reversed and a new trial granted because the court erred in summarily denying, as untimely, his request to proceed pro se … . “Although requests [to proceed pro se] on the eve of trial are discouraged, the Court of Appeals has found that a request may be considered timely when it is interposed prior to the prosecution’s opening statement,’ as here”… . People v Smith. 2015 NY Slip Op 09757, 4th Dept 12-31-15

CRIMINAL LAW (REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)/PRO SE (CRIMINAL LAW, REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)

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PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION (CONVICTION NOT REVERSED HOWEVER); INSUFFICIENT EVIDENCE OF PHYSICAL INJURY TO SUPPORT ASSAULT 3RD CONVICTION.

The Fourth Department admonished the prosecutor for improper remarks in summation, but did not reverse the conviction. The court found the evidence of “physical injury” insufficient to support the Assault 3rd conviction and reversed that unpreserved error under a “weight of the evidence” analysis:

Despite this Court’s repeated admonitions to prosecutors not to engage in misconduct during summation, the prosecutor improperly referred to facts not in evidence when he insinuated that the victim regretted that she did not get out of defendant’s vehicle … . The prosecutor also improperly appealed to the jury’s sympathy and bolstered the victim’s credibility, and did so repeatedly, by commenting on how difficult it was for her to recount her ordeal, first to the police, then before the grand jury, and finally in her trial testimony … . In addition, the prosecutor improperly suggested that the jury experiment on themselves to see how quickly bite marks fade … . Nevertheless, “[a]lthough we do not condone the prosecutor’s conduct, it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law’ ” … . We admonish the prosecutor, however, “and remind him that prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … . * * *

We conclude, upon our independent review of the evidence, that the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury … . The indictment alleged that defendant caused physical injury to the victim “by striking her in the face.” Although the victim testified that defendant struck her in the face, and photographs of the victim showed swelling and discoloration of the left side of her face, the victim did not testify that she suffered substantial pain from that injury or that she sought medical attention for it … . People v Gibson, 2015 NY Slip Op 09722, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION)/CRIMINAL LAW (ASSAULT 3RD CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PHYSICAL INJURY)/PROSECUTORIAL MISCONDUCT (IMPROPER REMARKS IN SUMMATION)/EVIDENCE (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY RE: ASSAULT 3RD CONVICTION)/ASSAULT 3RD (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY)

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STATEMENT MADE AFTER UNEQUIVOCAL REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Fourth Department reversed defendant’s conviction and ordered a new trial after concluding defendant’s statements to police should have been suppressed. After defendant told police she needed to talk to a lawyer, the police questioned her further during a “smoke break:”

After answering questions for approximately an hour and ten minutes, defendant said, “I think I need to talk to an attorney.” In response, the first investigator stated, “Would you like to talk to one? If you think that, that’s fine. That’s up to you.” Defendant replied, “I need to,” before going on to state that she would never have bad feelings toward the boy and genuinely cared about him. The questioning then ceased, and the first investigator allowed defendant to go outside with the second investigator and a female Child Protective Services worker to smoke a cigarette.

While defendant was smoking in the parking garage, the second investigator engaged her in a lengthy conversation. Unbeknownst to defendant, the conversation was being digitally recorded by the second investigator. During the conversation, defendant made numerous admissions, all but confessing that she had engaged in sexual activity with the boy. * * *

… [W]e conclude that, although defendant’s statement “I think I need to talk to an attorney” may not, standing alone, constitute an unequivocal invocation of the right to counsel … , her subsequent statement “I need to”—made in reply to the first investigator stating “Would you like to talk to one? If you think that, that’s fine. That’s up to you”—removed any ambiguity and made clear that defendant was requesting the assistance of counsel … . People v Kennard, 2015 NY Slip Op 09729, 4th Dept 12-31-15

 

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PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct in summation:

On summation, the prosecutor repeatedly invoked a “safe streets” argument … , even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim … ; improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses … ; and denigrated the fact that defendant had elected to invoke his constitutional right to a trial … . Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case … .

We recognize, of course, that “[r]eversal is an ill-suited remedy for prosecutorial misconduct” … . It is nevertheless mandated when the conduct of the prosecutor “has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law. In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached” … . In view of the substantial prejudice caused by the prosecutor’s misconduct in this case, including the fact that the evidence of guilt is less than overwhelming … , we agree with defendant that reversal is required. People v Jones, 2015 NY Slip Op 09773, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (REMARKS IN SUMMATION REQUIRED REVERSAL)

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FACEBOOK’S SUIT AGAINST LAW FIRMS WHICH REPRESENTED A CLIENT IN A FRAUDULENT SUIT AGAINST FACEBOOK DISMISSED.

The First Department, reversing Supreme Court, dismissed a malicious prosecution and Judiciary Law 487 action brought by Facebook against law firms which represented a client who brought a fraudulent lawsuit against Facebook. The client apparently forged a contract with Mark Zuckerberg (the founder of Facebook) which would have given the client a 50% interest in Facebook. The client’s suit against Facebook was dismissed and the client was indicted for wire fraud. The First Department held that the “conclusory” allegations in the complaint did not sufficiently plead the “no probable cause to bring the suit” element of a malicious prosecution cause of action or the “egregious conduct” element of a Judiciary Law 487 cause of action:

With respect to the element of probable cause [re: malicious prosecution], a plaintiff must allege that the underlying action was filed with “a purpose other than the adjudication of a claim” and that there was “an entire lack of probable cause in the prior proceeding” … . Moreover, the lack of probable cause must be “patent” … . In this context, the Court of Appeals has stated as follows: “Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. The want of probable cause does not mean the want of any cause, but the want of any reasonable cause, such as would persuade a man of ordinary care and prudence to believe in the truth of the charge” … . In a malicious prosecution action, the burden of proof to establish a want of probable cause is on the plaintiffs … .

Here, the … court’s granting of a TRO at the inception of the [client’s] action, prior to any of the defendants’ representation of [the client], created a presumption that [the client] had probable cause to bring the case. This presumption must be overcome by specifically pleaded facts … . Moreover, a plaintiff’s factual allegations regarding lack of probable cause and malice may be disproved by the evidentiary material submitted by defendant in support of a motion to dismiss … .

Applying these principles to this case, we find that the allegations in the instant complaint concerning defendants’ lack of probable cause are entirely conclusory, and are thus inadequate to support the lack of probable cause element of the malicious prosecution claim … . * * *

Relief under a cause of action based upon Judiciary Law § 487 “is not lightly given” … and requires a showing of “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorneys that caused damages … . Allegations regarding an act of deceit or intent to deceive must be stated with particularity … ; the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient … . Facebook, Inc. v DLA Piper LLP (US), 2015 NY Slip Op 09602, 1st Dept 12-29-15

ATTORNEYS (MALICIOUS PROSECUTION ACTION AGAINST LAW FIRMS WHICH REPRESENTED A CLIENT IN A FRAUDULENT SUIT DISMISSED)/MALICIOUS PROSECUTION (ACTION AGAINST LAW FIRMS WHICH REPRESENTED A CLIENT IN A FRAUDULENT SUIT DISMISSED)/JUDICIARY LAW 487 (ACTION AGAINST LAW FIRMS WHICH REPRESENTED A CLIENT IN A FRAUDULENT SUIT DISMISSED)

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PROSECUTION’S USE OF EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION; THE ERROR WAS DEEMED HARMLESS HOWEVER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Pigott (who adopted the dissent by Justice Garry in the Appellate Division), determined that the prosecution’s proof of defendant’s post-Miranda silence as he was being transported by the police violated defendant’s due process rights under the state constitution. The error, however, was deemed harmless because the court found there was no reasonable possibility the error contributed to defendant’s conviction. The defendant’s conviction was therefore upheld. The defendant acknowledged commission of the crimes (two murders) but raised the extreme emotional disturbance (EED) defense. The Court of Appeals held that evidence of defendant’s silence upon arrest, which apparently was aimed at disproving or calling into question the EED defense, did not contribute to the jury’s rejection of the EED defense. The opinion includes extensive discussions of the use of evidence of a defendant’s silence and the related violation of state constitutional rights, the EED proof requirements, and ineffective assistance of counsel. People v Pavone, 2015 NY Slip Op 09315, CtApp 12-17-15

CRIMINAL LAW (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/EVIDENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/SILENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)

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WHERE NO NOTICE OF APPEAL IS FILED, A CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Rivera, determined a judgment of conviction and sentence becomes final when the 30-day period for filing a notice of appeal expires (where no notice is filed). Here the issue was whether the defendant could move to vacate his conviction by guilty plea because he was not informed of the deportation consequences of the plea. Because the motion to vacate would not be available if defendant’s conviction and sentence became final before Padilla v Kentucky (559 US 356) was decided (requiring that a defendant be informed of deportation consequence of a plea), the date of finality was determinative. If the finality date is 30 days after conviction and sentence, defendant’s conviction and sentence would have been final before Padilla was decided. If, as defendant argued, the conviction and sentence became final one year and 30 days after the conviction and sentence, when the time for moving to file a late notice of appeal expired, defendant’s conviction and sentence would not have been final before Padilla was decided. Because the Court of Appeals decided the conviction and sentence became final when no notice of appeal was filed within 30 days, defendant could not move to vacate his conviction:

Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek leave to appeal to this Court in a timely fashion could argue that the judgment was not final until one year and 30 days after the Appellate Division affirmance, inasmuch as the defendant could have sought leave from this Court to file a belated application for discretionary review pursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with the Appellate Division but has had the appeal dismissed due to failure to perfect could argue that the judgment is not yet final, inasmuch as the defendant could ask the Appellate Division to vacate the dismissal of the appeal.

Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis … . People v Varenga, 2015 NY Slip Op 09312, CtApp 12-17-15

CRIMINAL LAW (WHERE NO NOTICE OF APPEAL IS FILED, A JUDGMENT OF CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES)/JUDGMENT OF CONVICTION AND SENTENCE (BECOMES FINAL UPON EXPIRATION OF 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL)

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RE: FAILURE TO TIMELY FILE A NOTICE OF APPEAL: A PREREQUISITE FOR CORAM NOBIS RELIEF IS INEFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, determined that the applications for a writ of coram nobis in the two cases before the court were properly denied. The court found that the defendants were aware of their right to appeal but had not requested that their attorneys file a notice of appeal. The cases, therefore, were factually distinct from cases where the defendants requested that their attorneys file a notice of appeal but the attorneys failed to do so:

In People v Syville (15 NY3d 391), this Court considered whether defendants may be afforded an opportunity to file a notice of appeal, even beyond the one year and 30 days permitted under the CPL. In Syville, the defendants had made timely requests to their attorneys to file a notice of appeal on their behalf but their attorneys failed to comply. We held that when an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant demonstrates that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering a coram nobis application to pursue an untimely appeal. Thus, coram nobis relief is not just another stop on a continuum of opportunities for a defendant to seek appellate relief. Rather, it is extraordinary relief only to be provided in “rare cases” “when a right to appeal was extinguished ‘due solely to the unconstitutionally deficient performance of counsel'” … . * * *

… [N]either defendant claims that he requested that his attorney file a notice of appeal and that his attorney failed to comply with that request. Rather, they claim that counsel did not advise them of the right to appeal and had defendants known about their right to appeal, they would have requested one. However, in both appeals, the only evidence proffered in support of the contention that defendants were not apprised of their appellate rights are self-serving affidavits. The records as a whole reveal that defendants knew about their right to appeal. Thus, to grant defendants relief here would be to broaden the Syville rule to apply to any case where a notice of appeal had not been filed within one year and 30 days of conviction. Such a rule would abrogate CPL 460.30. Simply put, defendants here failed to show that their attorneys were unconstitutionally ineffective and therefore they are not entitled to the relief they seek. People v Rosario, 2015 NY Slip Op 09230, CtApp 12-16-15

CRIMINAL LAW (NO CORAM NOBIS RELIEF WHERE DEFENDANT DID NOT REQUEST COUNSEL TO FILE A NOTICE OF APPEAL)/CORAM NOBIS (NO RELIEF WHERE DEFENDANT DID NOT REQUEST ATTORNEY TO FILE A NOTICE OF APPEAL)/APPEALS (NO CORAM NOBIS RELIEF WHERE DEFENDANT DID NOT REQUEST COUNSEL TO FILE A NOTICE OF APPEAL)

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