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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

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INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.

The First Department reversed defendant’s conviction, finding several distinct flaws which deprived defendant of a fair trial. Testimonial hearsay which served to bolster the complainant’s identification of the defendant was improperly admitted. The prosecutor improperly referred to stricken testimony in summation. And the judge effectively coerced the jury into reaching a verdict.  With respect to the coerced verdict, the court wrote:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days … . The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system … .

The court further indicated that the jury would likely continue deliberating into the next week although jurors had been told during jury selection that the case would be over by the aforementioned Friday, raising concerns for one juror who was going to start a new job the following Monday and another juror who was solely responsible for his child’s care in the first three days of the next week … . After the court informed the latter juror that he would be required to show up the next week despite the juror’s purportedly fruitless efforts to obtain alternative childcare, and then brought the juror back into the courtroom solely to reiterate that point more firmly, the jury apparently returned its verdict within less than nine minutes, at about 3:29 p.m. on the Friday … . The totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict. People v DeJesus, 2015 NY Slip Op 08959, 1st Dept 12-8-15

CRIMINAL LAW (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, REFERENCE TO STRICKEN TESTIMONY)/CRIMINAL LAW (COERCED VERDICT, MISTRIAL SHOULD HAVE BEEN GRANTED)/EVIDENCE (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/HEARSAY (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)PROSECUTORIAL MISCONDUCT (REFERENCE TO STRICKEN TESTIMONY)/COERCED VERDICT (JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/VERDICT (COERCED, JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/MISTRIAL (JUDGE IMPROPERLY COERCED JURY TO REACH A VERDICT, MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTOR’S REFERENCES TO STRICKEN TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE REQUIRING REVERSAL.

The Third Department determined defense counsel’s failure to object to the prosecutor’s references to stricken testimony in summation amounted to ineffective assistance of counsel requiring reversal. The defendant was accused of running over his girlfriend with a pickup truck:

Here, during direct examination by the People, the witness testified that he heard defendant yell, “I hope you f***ing die, bitch.” Finding that this testimony went to defendant’s state of mind, County Court overruled counsel’s objection and permitted the statement into evidence. The witness then testified that he assumed defendant was directing such comment toward [the victim]. Upon defendant’s further objection, County Court held that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record. Despite this evidentiary ruling, during summation, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court. Specifically, at one point during closing argument the prosecutor stated, “If this was some sort of an accident, then why would the defendant scream at [the victim], I hope you f***ing die, bitch? Is that consistent with an accident or is that consistent with an intent to injure? If you accidentally just ran over your significant other, is that what you would say to them?” … . People v Ramsey, 2015 NY Slip Op 08874, 3rd Dept 12-3-15

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)/INEFFECTIVE ASSISTANCE (FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)

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Enhanced Sentencing for Second Child Sexual Assault Felony Offenders Is Required by Penal Law 70.07; Language in Criminal Procedure Law 400.19 Can Not Be Interpreted to Mean the People Can Decide Not to Seek the Enhanced Sentence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in affirming defendant’s conviction and sentencing, discussed ineffective assistance, prosecutorial misconduct, and statutory interpretation issues. The ineffective assistance and prosecutorial misconduct discussions are fact-specific and not summarized here. With respect to the statutory interpretation issue, the defendant argued he should not have been sentenced as a second child sexual assault felony offender because the People were required to file a predicate statement (notifying him an enhanced sentence would be sought) prior to trial and did not do so. The court determined the statutory language indicating the predicate statement “may” be filed any time before trial (in Criminal Procedure Law [CPL] 400.19) did not preclude the People from filing the statement after trial started, and did not indicate the People had the discretion not to seek an enhanced sentence:

The explicit language in section one [of Penal Law 70.07] states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” … . Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent … . People v Wragg, 2015 NY Slip Op 08453, CtApp 11-19-15

 

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Carrier’s Waiver of Lien on Third-Party Settlement Is Not “Compensation” Upon Which an Award of Attorneys Fees Can Be Based

The Third Department determined the negotiation of a waiver of the carrier’s lien on a third-party settlement was not “compensation” upon which an award of attorneys fees can be based:

Pursuant to Workers’ Compensation Law § 24, counsel fees approved by the Board “shall become a lien upon the compensation awarded” and compensation is defined as “the money allowance payable to an employee or to his [or her] dependents as provided for in this chapter” (Workers’ Compensation Law § 2 [6]). Claimant contends that the carrier’s waiver of its lien against the third-party settlement is equivalent to a payment of compensation and counsel fees based upon services provided in securing the waiver should be approved. While “the term ‘compensation’ should be liberally construed to advance the interest of injured employees” …, we find no abuse of the Board’s discretion in its finding that a waiver by a workers’ compensation carrier of a lien against a third-party recovery is not compensation within the meaning of the Workers’ Compensation Law … . Although claimant does benefit from the waiver of the lien, the benefit derived relates to the third-party proceeds and not to compensation awarded him under the Workers’ Compensation Law. Accordingly, the Board’s refusal to award counsel fees will not be disturbed. Matter of Pickering v Car Win Constr., Inc., 2015 NY Slip Op 08484, 3rd Dept 11-19-15

 

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Inaccurate Advice About the Deportation Consequences of a Guilty Plea Constitutes Ineffective Assistance; Defendant Entitled to a Hearing on His Motion to Vacate His Conviction in this Pre-Padilla Case

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction (by guilty plea) in this pre-Padilla case. Defendant alleged he was told deportation was not likely, or was a “possibility,” when, in fact, deportation was mandatory. That allegation, plus an assertion he would have negotiated a different plea which did not require deportation had he known the actual consequences of his plea, was sufficient to warrant a hearing:

In Padilla v Kentucky (559 US 356), the United States Supreme Court ruled that the Sixth Amendment to the United States Constitution requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. However, that decision is not applied retroactively to state court postconviction proceedings … . Since the defendant’s judgment of conviction became final when his time to take an appeal expired—long before Padilla was decided in 2010—Padilla is not applicable here. Therefore, “counsel’s failure to warn a defendant that a guilty plea might lead to removal from the United States” …  does not, in this case, amount to ineffective assistance of counsel.

However, “inaccurate advice about a guilty plea’s immigration consequences constitute[s]” ineffective assistance of counsel … . People v Pinto, 2015 NY Slip Op 08441, 2nd Dept 11-18-15

 

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Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

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Attorney Whose Testimony Would Support Client Should Have Been Disqualified Under Advocate-Witness Rule, However, the Motion to Disqualify the Attorney’s Firm Was Properly Denied

The Second Department noted that an attorney (Wohlman) should have been disqualified under the advocate-witness rule but the motion to disqualify the attorney’s firm and “of counsel” was properly denied. The attorney’s testimony would not be prejudicial to the client:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to disqualify Derek Wolman from representing the defendant in this action, since Wolman’s testimony will be necessary regarding “a significant issue of fact” in the dealings between the plaintiff and the defendant (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]…). Contrary to the defendant’s contention, the fact that Wolman’s testimony is necessary to and will support the defendant’s case does not preclude application of the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7…).

However, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff’s motion which were to disqualify Davidoff Hutcher & Citron, LLP, (hereinafter DHC), Candace C. Carponter, and Candace C. Carponter, P.C., from representing the defendant in this action. Wolman is a member of DHC, and Candace C. Carponter and her P.C. appeared as “of counsel” to DHC. Under rule 3.7(b)(1) of the Rules of Professional Conduct (see 22 NYCRR 1200.0), which are not binding authority and provide guidance only … , “[a] lawyer may not act as an advocate before a tribunal if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (22 NYCRR 1200.0, rule 3.7[b][1]). Here, the plaintiff did not argue that Wolman’s testimony would be prejudicial to the defendant. Rather, the plaintiff argued that Wolman’s testimony would support the defendant’s case. Thus, the plaintiff failed to establish any basis for disqualifying DHC, Carponter, or Carponter’s P.C. They can continue to represent the defendant despite the fact that Wolman, their colleague, is a necessary witness … . NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 2015 NY Slip Op 07958, 2nd Dept 11-4-15

 

Misrepresentations, Distortions, Attacks on the Court, Etc., Included in Motion Papers Warranted Sanctions Against Attorney

The First Department, in a full-fledged opinion by Justice Andrias, with two concurring memoranda, over a full-fledged dissenting opinion by Justice Saxe, determined Supreme Court properly sanctioned one of the two attorneys who represented a 94-year-old woman in guardianship proceedings. Supreme Court’s sanctioning of a second attorney and denial of all attorney’s fees were reversed. The sanctions stemmed from motion papers which, Supreme Court found, included misrepresentations, omissions, distortions, and attacks on the court and others which were wholly without merit and made in bad faith. The court explained the applicable law:

Pursuant to 22 NYCRR 130-1.1(a) and (b), the court, “in its discretion,” may award costs, including attorney’s fees, as well as impose financial sanctions against an attorney or firm that engages in “frivolous conduct.” When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent (22 NYCRR 130—1.1[c]). Furthermore, “[t]rial judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and we will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion” … .

22 NYCRR 130-1.1(c) sets forth three categories of “frivolous conduct”: “(1) [conduct which] is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; “(2) [conduct which] is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or “(3) [conduct which] asserts material factual statements that are false.” “Conduct which violates any of the three subdivisions [of Section 130-1.1(c)] is grounds for the imposition of sanctions” … . Thus, sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record … .

Upon our review of the record, we hold that the court’s finding that the orders to show cause submitted in Motion Seq. Nos. 2 & 4 were based on material false statements, which constituted frivolous conduct within the meaning of 22 NYCRR § 130-1.1(c)(3) warranting the imposition of costs, including attorneys’ fees, and a monetary sanction, was not a clear abuse of discretion … . Matter of Kover, 2015 NY Slip Op 07802, 1st Dept 10-27-15

 

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“Bad Faith Claims Handling” Cause of Action Properly Dismissed As Duplicative of Breach of Contract Cause of Action/Sanctions Appropriate for Inclusion of Dismissed Cause of Action in Amended Complaint

The First Department determined a purported cause of action for “bad faith claims handling” in an insurance-coverage dispute was duplicative of the breach of contract cause of action (and was therefore properly dismissed). The court further determined that attorney sanctions were appropriate for including a dismissed cause of action in an amended complaint. The First Department explained the (rare) circumstance when breach of contract will give rise to a distinct tort cause of action (not the case here):

In some circumstances “[t]he very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim” …, in which the Court held that “a fire alarm company owed its customer a duty of reasonable care independent of its contractual obligations, and that notwithstanding a contractual provision exculpating the alarm company from damages flowing from its negligence, it could be held liable in tort for its gross failure to properly perform its contractual services” … . Further, “[w]here a party has fraudulently induced the plaintiff to enter into a contract, it may be liable in tort” … . However, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” … . Orient Overseas Assoc. v XL Ins. Am., Inc., 2015 NY Slip Op 07788, 1st Dept 10-27-15

 

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