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Court Should Not Have Deferred, Over Defense Counsel’s Objection, to Defendant’s Request that the Jury Not Be Charged on a Lesser Included Offense—To Do So Denies Defendant His Right to the Expert Judgment of Counsel

The Fourth Department determined the court erred in deferring to the defendant’s request that the jury not be charged to consider a lesser included offense.  Defense counsel strongly objected to the defendant’s request and so informed the court.  The decision concerning whether to request a “lesser included” jury instruction is solely the province of defense counsel:

In Colville (20 NY3d at 23), the Court of Appeals held that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, “contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected” (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, “[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him” (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14

 

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Attorney Discharged without Cause Entitled to Fee as an Account Stated

The Third Department determined an attorney had been discharged without cause and was entitled to a charging lien and a retaining lien.  The client had signed a retainer agreement and had not expressed any objection to the detailed itemized bill submitted by the attorney.  The amount of the bill was therefore deemed an account stated.  In explaining the options available to an attorney who has been discharged without cause, the court wrote:

…[A]n attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien, (2) a retaining lien, and/or (3) a plenary action in quantum meruit … . A charging lien is a statutory remedy — codified in Judiciary Law § 475 — that grants the attorney “a security interest in the favorable result of [the] litigation” … . A retaining lien, on the other hand, permits the discharged attorney to retain the contents of the client’s file until such time as the attorney has been paid or “the client has otherwise posted adequate security ensuring [the] payment [there]of” … . With respect to either lien, a hearing may be required to determine the amount of compensation due and owing to the discharged attorney. Here, however, we have no quarrel with Supreme Court’s finding that the firm was entitled to an award of $10,884.14 based upon an account stated. Roe v Roe, 2014 NY Slip 03317, 3rd Dept 5-8-14

 

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Fraud Upon the Court Must Be Demonstrated by Clear and Convincing Evidence/Striking of Pleadings and Entering Default Judgment Against Offending Party Appropriate Under the Facts

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the standard for demonstrating a party has committed fraud upon the court is “clear and convincing.”  Under the facts, the court determined that defendants' fraud upon the court had been demonstrated and that striking the pleadings and entering a default judgment against the defendants was appropriate:

We …conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending “party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action” … . A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns “issues that are central to the truth-finding process” … . Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense … . A finding of fraud on the court may warrant termination of the proceedings in the non-offending party's favor … . For “when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits” … . Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment.

We caution that dismissal is an extreme remedy that “must be exercised with restraint and discretion” … . Dismissal is most appropriate in cases like this one, where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and convincing evidence, such as the documentary and testimonial evidence found here. Dismissal is inappropriate where the fraud is not “central to the substantive issues in the case” …, or where the court is presented with “an isolated instance of perjury, standing alone, [which fails to] constitute a fraud upon the court” … . In such instances, the court may impose other remedies including awarding attorney fees …, awarding other reasonable costs incurred … , or precluding testimony … . In the rare case where a court finds that a party has committed fraud on the court warranting dismissal, the court should note why lesser sanctions would not suffice to correct the offending behavior … . CDR Creances SAS v Cohen, 2014 NY Slip Op 03294, CtApp 5-8-14

 

Motion to Disqualify an Attorney Who Had Previously Represented Both Parties and Related Businesses Should Have Been Granted

The Second Department determined a motion to disqualify an attorney who had represented both parties in related matters should have been granted:

Here, prior to the commencement of this action, the defendant’s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant’s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiff’s interests are now adverse to the defendant’s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant’s motion to disqualify the defendants’ attorney… . Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 2014 NY Slip Op 03232, 2nd Dept 5-7-14

 

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Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed.  After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test.  However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant.  The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:

In People v Gursey (22 NY2d 224 [1968])… we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'” … . Violation of this right to legal consultation generally requires suppression of the scientific evidence …. Because time is of the essence in obtaining accurate chemical test evidence …, we further observed in Gursey that a suspect's communication with a lawyer regarding “the exercise of legal rights should not [] extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” … .

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” … . In other words, conferring with counsel is permissible only if “'such access does not interfere unduly'” with timely administration of the test … . * * *

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of alcohol test … . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194 [2] [b], 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf … . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, CtApp 5-6-14

 

Awareness of a Conflict of Interest for Eight Months Constituted a Waiver of Any Objection to Opposing Counsel

In a custody proceeding, the Second Department determined mother’s motion to disqualify father’s counsel, based upon a conflict of interest, should not have been granted. The mother was aware of the conflict for eight months prior to making the motion and therefore had waived any objection to father’s counsel:

The disqualification of an attorney is a matter which lies within the sound discretion of the court … . “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. While the right to choose one’s counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized” … . Where a party seeks to disqualify counsel of an adversary in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . “If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation” … . Here, the mother brought the issue of the potential conflict to the court’s attention in April 2014, even though the record reflects that she had been aware of this issue for at least eight months at that time. Therefore, the mother waived any objection to the father’s choice of counsel. Matter of Valencia v Ripley, 2015 NY Slip Op 03852, 2nd Dept 5-6-15

 

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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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Defendant’s Indelible Right to Counsel Did Not Attach When the Attorney for Defendant’s Husband’s Estate Communicated with the Police—The Attorney Was Unaware that Defendant Was a Suspect In Her Husband’s Death at the Time of the Communication

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant’s husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate’s attorney and was not aware defendant was a suspect in her husband’s death:

The evidence established that defendant was the personal representative of the estate …, and that the attorney’s representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent’s death, which he believed to have been a suicide; that he identified himself as the attorney for decedent’s estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although “an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference” … . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

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Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

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Attorney’s Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper—Relevant Law Explained

The Fourth Department, in the context of plaintiff’s attempt to collect a judgment reflecting child support arrears, determined an attorney’s charging lien was appropriately attached to the proceeds of the sale of defendant’s property.  The court rejected the argument that child support payments are exempt from an attorney’s charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney’s charging liens, and noted the exemptions for proceedings before “a department of labor” and an award of alimony or maintenance:

Under the common law, “the attorney’s lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained’ “… . Judiciary Law § 475 “codifies and extends the common-law charging lien” …, by providing an attorney with “a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come” (§ 475 …). The statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action” … . “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action” … .

The only exception contained in the statute is for proceedings before “a department of labor” (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance … . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

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