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Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice

The Second Department determined defendant’s weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its “interest of justice” power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant’s testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn “restaurant closing-time” information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn … .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor’s cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney’s office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. … . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop … .

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial … . Similarly, the prosecutor’s questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone … . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion … .

In addition, the prosecutor’s statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already “played out this exact scenario in his mind . . . every time he left his house with that gun” was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest … .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

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Reversal Due to Ineffective Assistance Affirmed Over Forceful Dissent

The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day.  Judge Pigott wrote a long and detailed dissent.  People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15

 

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Where a Client’s Claims Against an Attorney Arise from the Attorney’s Providing Legal Services Which Are Related In Part to the Attorney’s Business Enterprise, the “Business Enterprise” Coverage Exclusions In the Legal Malpractice Insurance Policy Are Triggered

The First Department, in a full-fledged opinion by Justice Gische, determined the “business enterprise” exclusions in a legal malpractice insurance policy applied. Excluded from coverage were claims arising from the operation of a business enterprise in which the insured attorney was a principal.  The client, who sued for breach of contract and legal malpractice, had loaned money to the attorney’s real estate business and the attorney had drawn up the relevant documents and personally guaranteed payment. The fact that the client’s claims arose in part from the attorney’s involvement in his business enterprise triggered the policy exclusions.  The First Department, in this declaratory judgment action, held that the legal malpractice insurer had no duty to defend:

[The attorney] was simultaneously serving two masters, … his client, and a company of which he was a principal. This is precisely the situation that the policy’s Insured Status and Business Enterprise Exclusions exclude from coverage. Since [the client’s] claims partly arise from the legal services the attorneys provided her with, but also from [the attorney’s] status or activity for his company…, they are of a hybrid nature, and are not covered, meaning that [the insurer] has no duty to defend … .Lee & Amtzis, LLP v American Guar. & Liab. Ins. Co., 2015 NY Slip Op 02919, 1st Dept 4-7-15

 

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Ex Parte Interview of Important Prosecution Witness Re: the Witness’ Health, Addictions and Ability to Testify Violated Defendants’ Right to Confrontation and Right to Counsel

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court’s conducting an ex parte interview of a main prosecution witness concerning the witness’ health, addictions and his related ability to testify violated the defendants’ right to confrontation and right to counsel:

Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see … People v Goggins, 34 NY2d 163, 173 [1974]). “[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel” (Goggins, 34 NY2d at 169). A “defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the ‘neutral’ Judge to assess whether the disclosure is relevant or material” (id.). Goggins concerned a defendant’s right to disclosure of an informant’s identity, and this Court held that where the information “relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera” (id. at 173). * * *

The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis … . Courts should not delve into questions of prejudice when assistance of counsel is involved … . As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” … . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive …, as harmless error does not apply in right-to-counsel cases … .

Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a “substantial right” of a party, defense counsels’ presence was required… . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

Non-Resident Attorneys Must Maintain a Physical Office in New York State to Practice in New York

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the requirement that, in order to practice in New York, non-resident attorneys maintain a physical office in New York State is constitutional:

Here, the statute appears to presuppose a residency requirement for the practice of law in New York State. It then makes an exception, by allowing nonresident attorneys to practice law if they keep an “office for the transaction of law business” in this State. By its plain terms, then, the statute requires nonresident attorneys practicing in New York to maintain a physical law office here. Schoenefeld v State of New York, 2015 NY Slip Op 02674, CtApp 3-31-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court

The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:

As a general proposition, “no appeal lies from the denial of a motion to reargue” … . Where, however, the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied … . Accordingly, Supreme Court’s April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]…). * * *

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” … , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15

 

 

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Failure to Link Specific Monetary Loss to Acts or Omissions of the Attorneys Required Dismissal

The Second Department determined plaintiff’s legal malpractice action should have been dismissed because the plaintiff did not demonstrate a specific monetary loss was proximately caused by the negligence of the attorneys. Plaintiff alleged the attorneys failed to ensure that a note, guarantee and mortgage were enforceable against Nina, who disaffirmed liability on the ground of legal incapacity:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, “but for the attorney’s negligence” … .

…The plaintiff failed to demonstrate the amount it could or would have collected if the note, the guaranty, and mortgage had been enforceable against Nina … . In addition, the plaintiff failed to demonstrate that it was unable to recover the amounts due under the note by other legal means available to it under the terms of the note and guaranty, or that it was unable to obtain equitable relief from Nina even after she disaffirmed liability on the ground of legal incapacity (see Restatement [Second] of Contracts § 14, Comments b, c; see also Restatement of Restitution § 139). Since the plaintiff failed to demonstrate the extent to which it would have been unable to enforce the note and the guaranty after it was disavowed by Nina, and the precise extent to which it would have been able to recover had the note, the guaranty, and the mortgage been enforceable against her, the plaintiff failed to establish, prima facie, that any negligence on the part of [the attorneys] was a proximate cause of actual and ascertainable damages … . Quantum Corporate Funding, Ltd. v Ellis, 2015 NY Slip Op 02104, 2nd Dept 3-18-15

 

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