You are here: / Attorneys
, ,

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)

, , ,

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)

, ,

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)

,

NO EQUITABLE DISTRIBUTION FUND TO WHICH ATTORNEY’S CHARGING LIEN COULD ATTACH.

The Second Department explained when an attorney’s charging lien can be imposed in divorce proceedings:

“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” (… see Judiciary Law § 475). In a matrimonial action, a charging lien will be available “to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” … . However, “[w]here the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest” … .

In this case, the plaintiff and the defendant already owned the marital residence jointly as tenants by the entirety. Thus, the parties’ settlement agreement merely permitted the plaintiff to retain her existing interest in the marital residence. “Although the nature of the property was converted from realty into dollars, her interest remained the same. Thus, no equitable distribution fund to which a charging lien can attach was created by the efforts of the [plaintiff’s] attorney” … . Charnow v Charnow, 2015 NY Slip Op 09241, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (CHARGING LIEN IN MATRIMONIAL ACTIONS)/FAMILY LAW (ATTORNEY’S CHARGING LIEN IN MATRIMONIAL ACTIONS)/CHARGING LIEN (MATRIMONIAL ACTIONS)

DEFENDANTS’ MOTION TO DISQUALIFY PLAINTFF’S ATTORNEY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants’ motion to disqualify plaintiff’s attorney on conflict of interest grounds should have been granted. Plaintiff’s attorney had previously represented the defendant involving issues substantially related to those in the current action:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'” … . ” A party’s entitlement to be represented in ongoing litigation by counsel of [his or her] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'” … . However, the right to be represented by counsel of one’s own choosing “will not supercede a clear showing that disqualification is warranted” … . Any 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 … . “Due to the significant competing interests in attorney disqualification cases,’ however, the Court of Appeals has advised against mechanical application of blanket rules,’ in favor of a careful appraisal of the interests involved'” … . Gjoni v Swan Club, Inc., 2015 NY Slip Op 09252, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/DISQUALIFICATION OF ATTORNEY (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/CONFLICT OF INTEREST (MOTION TO DISQUALIFY ATTORNEY SHOULD HAVE BEEN GRANTED)

,

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)

,

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)

,

COLLATERAL ESTOPPEL DOCTRINE DID NOT PRECLUDE TESTIMONY ABOUT DEFENDANT’S USE OF A RAZOR BLADE, DESPITE DEFENDANT’S ACQUITTAL ON THE RELATED “DANGEROUS INSTRUMENT” CHARGES IN THE FIRST TRIAL; ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL’S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL BE GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the doctrine of collateral estoppel did not prohibit testimony in defendant's second trial that the defendant threatened to cut a victim's throat with a razor blade, despite the fact defendant was acquitted of charges involving the use of a dangerous instrument in the first trial. The court concluded that the witness-victims could not give truthful testimony about the defendant's actions without reference to the razor blade. Therefore, the collateral estoppel doctrine, under the facts of this case, was properly not applied. The court went on to find that defense counsel's request to withdraw or her motion for a mistrial should have been granted. Defense counsel's statements at arraignment were used to impeach the defendant's version of events. After defense counsel reviewed her notes, she informed the court that her statements at arraignment were incorrect and that defendant's testimony at trial matched what he had told her before arraignment. Under these circumstances, the witness-advocate rule required that defense counsel withdraw or that a mistrial be declared. Defendant's conviction was therefore reversed:

… [T]he rigid application of collateral estoppel sometimes gives way to society's interest in ensuring the correctness of criminal prosecutions … . Thus, … if it becomes apparent … that collateral estoppel “cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied” …. . * * *

[Re: the use of defense counsel's erroneous statement to impeach defendant:] The situation went from bad to worse when it became clear that the only way for defense counsel to rehabilitate her client's credibility was to impugn her own, moments before she would argue for her client's innocence in summation. Any way you look at it, defense counsel had no choice but to withdraw. In these unusual circumstances, we hold that the trial court should have granted counsel's request to withdraw or declared a mistrial. People v Ortiz, 2015 NY Slip Op 09233, CtApp 12-16-15

CRIMINAL LAW (COLLATERAL ESTOPPEL DOCTRINE NOT APPLIED)/COLLATERAL ESTOPPEL (UNDER THE FACTS, DOCTRINE INAPPLICABLE IN CRIMINAL CASE)/ATTORNEYS (ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL'S MOTION TO WITHRAW OR HER MOTION FOR A MISTRIAL BE GRANTED)/ADVOCATE-WITNESS RULE (DEFENSE COUNSEL'S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

, ,

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)

,

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)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy