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Findings in a Sanctions Proceeding Against an Attorney Should Not Have Been Given Collateral Estoppel Effect in an Attorney-Disciplinary Proceeding

The Court of Appeals reversed the Appellate Division finding that sanctions imposed upon an attorney, stemming from the attorney’s representation of a client in a civil matter, should not have been given collateral estoppel effect in an attorney-disciplinary proceeding:

This case is distinguishable from Matter of Levy (37 NY2d 279, 281 [1975]), where we determined that it was neither unreasonable nor unfair to impose collateral estoppel in a disciplinary proceeding after the attorney had been convicted of a criminal offense. There, we held that the attorney would not be permitted to relitigate the issue of guilt after he was convicted following a criminal trial, at “which rigorous safeguards were imposed to insure against an unjust conviction” … .

By contrast, the determination here was made on papers — without cross-examination or the opportunity to call witnesses. … While the issue of whether [the attorney] had made false statements in her written declaration concerning her prior knowledge of [an annuity] agreement may have been relevant, it was certainly not the focus of the hearing … . The cursory nature of the sanctions proceeding itself failed to provide a full and fair opportunity to litigate the issue. Matter of Dunn, 2015 NY Slip Op 01556, CtApp 2-24-15

 

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Lease Provision Allowing the Landlord to Recover Attorney’s Fees in an Action Against the Tenant Triggered the Tenant’s Reciprocal Right to Recover Attorney’s Fees Against the Landlord Pursuant to Real Property Law 234 Should Tenant Prevail in the Action

The Court of Appeals, in a full-fledged opinion by Judge Rivera,  determined that a provision in a lease which allowed the landlord to recover attorney’s fees in a successful action against the tenant for failure to cure a default triggered the tenant’s right to attorney’s fees under Real Property Law 234 should the tenant prevail in the action:

Under Real Property Law § 234,

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as a result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

In order for the tenant to be eligible for attorneys’ fees under this section, the parties’ lease must permit the landlord, in any action or summary proceeding, to recover attorneys’ fees as a result of the tenant’s breach. Where a lease so provides, the court must interpret the lease to similarly permit the tenant to seek fees incurred as a result of the landlord’s breach or the tenant’s successful defense of a proceeding by the landlord. Here, we hold that paragraph 15 provides the basis for the tenant’s claim for reciprocal rights to attorneys’ fees within the meaning of Real Property Law § 234.

Paragraph 15 of the lease, titled “Tenant’s default”, sets forth the landlord’s remedies and the tenant’s liabilities upon the tenant’s failure to comply with a term or rule in the lease. According to this paragraph, where a properly notified tenant fails to cure a default the landlord may cancel the lease and retake possession of the premises, if necessary, by way of an eviction proceeding or other lawsuit. Upon cancellation of the lease and the landlord’s repossession of the premises the tenant is liable for rent for the unexpired term. The landlord’s rights to attorneys’ fees are set forth in clause D. (3) of this paragraph, which states, in part,

“D. If this Lease is cancelled, or Landlord takes back the Apartment, the following takes place:. . . .

“(3) Any rent received by Landlord for the re-renting shall be used first to pay Landlord’s expenses and second to pay any amounts Tenant owes under this Lease. Landlord’s expenses include the costs of getting possession and re-renting the Apartment, including, but not only reasonable legal fees, brokers fees, cleaning and repairing costs, decorating costs and advertising costs.”

Thus, clause D. (3) anticipates that after a tenant’s default leads to the reletting of the premises, the landlord is entitled to collect attorneys’ fees incurred in gaining possession. Under these circumstances, clause D. (3) complies with the requirements of Real Property Law § 234 that the lease provide “in any action or summary proceeding” for the landlord’s recovery of attorneys’ fees “incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease.” Graham Ct Owner’s Corp v Taylor, 2015 NY Slip Op 01482, CtApp 2-19-15

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Some of the Requirements for the Application of Attorney Work-Product and Trial-Preparation Privileges Explained

The Second Department explained some of the requirements for the application of attorney work-product and trial-preparation privileges:

Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy … . “[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product'” … . Contrary to the plaintiff’s contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy … .

The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation of litigation” … . Geffner v Mercy Med Ctr, 2015 NY Slip Op 01411, 2nd Dept 2-18-15

 

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Prosecutorial Misconduct Warranted a New Trial

The Fourth Department reversed defendant’s conviction and ordered a new trial because of the prosecutor’s misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

The prosecutor began her summation by improperly characterizing the People’s case as “the truth” and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant … .

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant … . The prosecutor asked the jury “to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I’m bugging, but I tried to catch him, that’s why I left,’ are examples of the ring of truth.” Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: “I submit to you the (complainant’s statements) are truthful.” The prosecutor also bolstered the complainant’s credibility by making herself an unsworn witness in the case … . In addressing inconsistencies between the complainant’s testimony and his earlier statement to the police, the prosecutor argued that the complainant made only “[o]ne inconsistent statement, from talking to the police and talking to me” (emphasis added). The prosecutor’s remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record … .

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant’s “bravery” in calling the police and testifying against defendant … . The prosecutor told the jurors that it was “not an easy decision” for complainant to call the police, and asked them to “hang [their] hat on . . . [the complainant]’s bravery by coming in front of you.” The prosecutor argued that the neighborhood where the crime occurred and where the complainant’s family worked “is an anti-police atmosphere.” After defense counsel’s objection to that comment was sustained, the prosecutor protested that “it was a statement in evidence” when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not “to go into what this area is like.” The prosecutor nonetheless continued her summation by asking the jurors to “[u]se [their] common sense to think about whether or not this happened and why there’s no other witnesses” (emphasis added). The prosecutor argued that the complainant “is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day.” She continued: “So please tell [the complainant] he did the right thing by calling 911 and telling them one man’s word is enough. Tell them that he is brave to report this.” The prosecutor ended her summation by urging the jury to “tell [the complainant] that his truthfulness is enough to convict the defendant” by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

 

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Defendant’s Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel—Criteria for Valid Waiver Explained

The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:

Defendant’s “conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed,” and he arguably thereby forfeited his right to be present at the hearing … . Nevertheless, he did not validly waive his right to counsel. “For such a waiver to be effective, the trial court must be satisfied that,” among other things, “it has been made competently, intelligently and voluntarily” … . Thus, the court must undertake a “searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” … . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel’s role, and there is no indication on the record before us that defendant “acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate” … . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court “did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path” … . People v Middlemiss, 2015 NY Slip Op 01208, 3rd Dept 2-11-15

 

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Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including “the right to appellate counsel of defendant’s choice and the right to seek appointment of counsel upon proof of indigency” … . “The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State” … and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People … . Since there is no such record evidence in this case, we agree with the defendant’s contention that he was deprived of his constitutional right to counsel on the People’s appeal to this Court … . Accordingly, we assign counsel to represent the defendant on the People’s appeal …, and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

 

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Prosecutorial Misconduct Deprived Defendant of a Fair Trial

The Fourth Department, exercising its “interest of justice” jurisdiction, over a dissent, determined the misconduct of the prosecutor warranted a new trial.  The prosecutor improperly questioned defendant about his homosexuality and the criminal records of persons with whom defendant resided, The prosecutor further improperly introduced evidence of defendant's propensity to commit a crime and elicited bolstering testimony from a police officer about the Child Sexual Abuse Accommodation Syndrome without qualifying the officer as an expert in that area. With respect to the police officer's testimony, the court wrote:

…[T]he prosecutor improperly elicited testimony from a police investigator that he had received training establishing that underaged victims of sexual crimes frequently disclosed the crime in minimal detail at first, and provided more thorough and intimate descriptions of the event later. That testimony dovetailed with the People's position concerning the way in which the victim revealed this incident … . Thus, we conclude that the investigator's testimony “was the precise equivalent of affirming the credibility of the People's witness through the vehicle of an opinion that [sexual abuse is frequently committed] as the victim had related. It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not. The jurors were fully capable of using their ordinary experience to test the credibility of the victim-witness; and the receipt of the [investigator]'s testimony in this regard was improper and indeed constituted usurpation of the function of the jury . . . Where, as here, the sole reason for questioning the expert' witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant's, the expert's' testimony is equivalent to an opinion that the defendant is guilty” (People v Ciaccio, 47 NY2d 431, 439), and the prosecutor improperly elicited that testimony.

Moreover, by eliciting that testimony, the prosecutor improperly introduced expert testimony regarding the Child Sexual Abuse Accommodation Syndrome. Although such testimony is admissible in certain situations …, here it was elicited from a police investigator under the guise that it was part of the investigator's training. The prosecutor failed to lay a foundation establishing that the investigator was qualified to provide such testimony …. Furthermore, the evidence does not establish that the investigator had “extensive training and experience [that] rendered [him] qualified to provide such [testimony]” … . People v Scheidelman, 2015 NY Slip Op 01111, 4th Dept 2-6-15


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Family Court Should Have Inquired More Deeply Into Mother’s Finances Before Ordering the Matter to Proceed Without Counsel for Mother

The Second Department determined Family Court should have inquired into mother's financial situation in more depth before finding that she was not eligible for assigned counsel and proceeding in the absence of counsel:

Given the mother's statements indicating that she lacked the funds to retain private counsel, the Family Court should have inquired further into the mother's financial circumstances, including, but not limited to, inquiring about her expenses, to determine whether she was eligible for assigned counsel … .

Furthermore, “[w]aiver of the right to counsel must be founded on an explicit and intentional relinquishment which is supported by knowledge and a clear understanding of the right” … . “In order to determine whether a party is validly waiving the right to counsel, the court must conduct a searching inquiry of the party who wishes to waive that right and thus proceed pro se. While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … .

Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so in light of her alleged inability to retain counsel after numerous adjournments and a lengthy delay in the proceedings … . The deprivation of the mother's fundamental right to counsel requires reversal, without regard to the merits of her position …, especially where, as here, the record demonstrates that the mother did not have a basic understanding of court proceedings … . Matter of Pugh v Pugh, 2015 NY Slip Op 00887, 2nd Dept 2-4-15


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Judge’s Failure to Question Prospective Juror Re: the Juror’s Possible Bias In Favor of Police Officers Was Reversible Error/Prosecutor’s Suggestion in Summation that Simply Being a Defendant Is Evidence of Guilt Was Grounds for Reversal As Well

The First Department reversed defendant's conviction because the trial judge did not further question a juror who indicated bias in favor of police officers.  [The judge, in denying defense counsel's “for cause” challenge, erroneously indicated it was defense counsel's role to question the juror about the juror's ability to be fair.]  In addition, the prosecutor's suggestion in summation that simply being a defendant is evidence of guilt was grounds for reversal:

Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” Upon making this type of challenge, “a juror who has revealed doubt, because of prior knowledge or opinion, about [his] ability to serve impartially must be excused unless the juror states unequivocally on the record that [he] can be fair” … . The CPL “does not require any particular expurgatory oath or talismanic words” …, but challenged jurors “must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence” … . Those who have given “less-than-unequivocal assurances of impartiality . . . must be excused” and “[i]f there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … .

In this case, the prospective juror gave a response that was uncertain at best, stating that he did not know and “couldn't say” whether he would be able to judge an officer's credibility as opposed to a civilian witness. * * * Given this ambiguity … it was incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court's instructions on the law … . …

…[T]he prosecutor's summation remarks regarding reasonable doubt also constituted reversible error, as these remarks suggested that the jury should convict based on facts extraneous to the trial. Specifically, the comments “linked [the defendant] to every defendant who turned out to be guilty and was sentenced to imprisonment,” thus inviting the jury to consider his status as a defendant as “evidence tending to prove his guilt” … . Moreover, the prosecutor's comments tended to minimize the jury's sense of responsibility for the verdict. These remarks exceed the bounds of permissible advocacy. People v Jones, 2015 NY Slip Op 00797, 1st Dept 2-3-15


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Penalty of Reasonable Attorney’s Fees Properly Assessed Against Claimant’s Attorney for Making Baseless Requests for a Change of Venue

The Third Department determined that the penalty of reasonable attorney’s fees was appropriate where claimant’s counsel made several baseless requests for a change of venue:

We have repeatedly upheld the imposition of a penalty of reasonable counsel fees pursuant to Workers’ Compensation Law § 114—a (3) (ii) when, as here, the record contains substantial evidence that a venue request was made without a reasonable basis … . The record reflects that there was no legitimate basis for seeking the venue change and the Board had previously rejected several similarly-worded venue change requests by counsel. Under these circumstances, the Board did not exceed its authority in assessing a penalty against counsel based upon the filings of the request to change venue and the appeal to the Board without reasonable grounds (see Workers’ Compensation Law § 114-a [3] [ii]; see also Workers’ Compensation Law §§ 23, 142), and its decision will not be disturbed … . Matter of Estwick v Risk Mgt Planning, 2015 NY Slip Op 00686, 3rd Dept 1-29-15

 

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