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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father was not provided with effective assistance of counsel in this child support proceeding. The standard for effective assistance is “meaningful representation” because the punishment can (and did) include incarceration:

As the father contends, he was deprived of the effective assistance of counsel at the hearing on the mother’s petition alleging willful violation of the child support order. “[I]n support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, . . . the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” … . Here, the father’s position at the hearing was that, due to his neuropathy, he was unable to work and had to rely on public assistance for income. Notably, despite having been advised that the father was required to provide a financial disclosure affidavit, tax forms, and certified medical and income records, the father’s counsel failed to procure certified copies of the father’s medical records or records establishing his entitlement to and receipt of public assistance. Moreover, the father’s counsel failed to call any witnesses to testify regarding the father’s neuropathy, to subpoena the father’s treating physician, or to obtain a medical affidavit from the father’s physician. The Support Magistrate made specific reference to the lack of any credible medical testimony, an incomplete financial disclosure affidavit, and the lack of tax returns in finding that the father failed to refute the mother’s prima facie showing of a willful violation of the child support order. The failure of the father’s counsel to obtain relevant medical and financial information constituted a failure to meaningfully represent the father, and thus, the father is entitled to a new hearing on the mother’s petition … . Matter of McCloskey v Unger, 2024 NY Slip Op 05210, Second Dept 10-23-24

Practice Point: Where a party in a child support proceeding faces possible incarceration, the party is entitled to “meaningful representation” by counsel, which was absent here.

 

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UNDER THE FACTS, THE PRO SE DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO PUT ON A DEFENSE BY THE PEOPLE’S ACCESS TO HIS RECORDED JAIL PHONE CALLS; DEFENDANT EFFECTIVELY WAIVED HIS RIGHT TO COUNSEL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined (1) the fact that the People had access to defendant’s recorded jail phone calls did not, under the facts, deprive the pro se defendant of his right to present a defense, and (2) the defendant effectively waived his right to counsel:

Under the particular facts of this case, however, we conclude that defendant’s right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant’s daughter visited him in jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant’s rights, permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense.

Although the People’s monitoring of an incarcerated pro se defendant’s jail phone calls may have a chilling effect on the defendant’s trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. People v Dixon, 2024 NY Slip Op 05176, CtApp 10-22-24

Practice Point: Under the facts of this case, the pro se defendant was not deprived of his right to present a defense by the People’s access to his recorded jail phone calls.

Practice Point: Here the defendant effectively waived his right to counsel.

 

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IN ORDER TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE THE RIGHT TO COUNSEL, THE DEFENDANT NEED NOT BE INFORMED OF HIS MAXIMUM SENTENCING EXPOSURE IN YEARS; THE “SPEEDY TRIAL” TIME ASSOCIATED WITH THE JOINDER OF A CO-DEFENDANT FOR TRIAL IS CHARGED TO THE DEFENDANT, EVEN WHERE THE DEFENDANT HAD NOT YET BEEN ARRAIGNED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion by Judge Rivera, affirming the Appellate Division, determined (1) in order to effectively waive the right to counsel, a defendant need not be informed of his maximum sentencing exposure in years, and (2) the pre-arraignment delay associated with the joinder for trial with a co-defendant is not chargeable to the People:

Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel.

Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a co-defendant. Blue contends this provision does not apply to pre-arraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue’s co-defendant were also chargeable to Blue, even though he had not yet been arraigned. People v Blue, 2024 NY Slip Op 05175, CtApp 10-22-24

Practice Point: A defendant can effectively waive the right to counsel without being informed of his maximum sentencing exposure in years.

Practice Point: Even though defendant had not yet been arraigned, the time associated with joining a co-defendant for trial was chargeable to the defendant.

 

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AFTER TWO MENTIONS OF THE POSSIBLE NEED FOR AN ATTORNEY WHICH DID NOT AMOUNT TO AN UNEQUIVOCAL REQUEST, THE DEFENDANT STATED “THAT’S WHAT I WANT A LAWYER FOR,” HE WAS “SCARED TO TALK,” AND HE “COULD STILL COOPERATE LATER;” THOSE STATEMENTS SHOULD HAVE BEEN UNDERSTOOD BY THE POLICE AS A REQUEST FOR COUNSEL (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined statements made by defendant after he invoked his right to counsel should have been suppressed:

In the course of the investigators’ questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began focusing on how he had first encountered the victim earlier that morning, defendant expressed that he did not wish to discuss that subject. After the investigators continued with a couple of follow-up questions on this topic, defendant stated, “that’s what I want a lawyer for.” He then went on to say that he was scared to talk and noted that he could still cooperate with the District Attorney at a later time.

… [We conclude that defendant clearly invoked his right to counsel. Although the first two alleged invocations … did not constitute requests for an attorney, they nevertheless serve to indicate that the subject of obtaining a lawyer was on defendant’s mind while he was being questioned. … [O]nce the interrogation moved to the underlying incident, defendant “articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney” … . Accordingly, any statements made by defendant thereafter should have been suppressed … . People v Lipka, 2024 NY Slip Op 05153, Third Dept 10-17-24

Practice Point: Defendant’s statements “that’s what I want a lawyer for,” he was “scared to talk,” and he “could still cooperate later” constituted an unequivocal request for counsel. Statements made thereafter should have been suppressed.

 

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THE DELAY IN PRODUCING THE DEFENDANT FOR ARRAIGNMENT AFTER THE PEOPLE BECAME AWARE HE WAS IN CUSTODY WAS ATTRIBUTABLE TO THE PEOPLE (A “CONTRADICTORY HOLDING” BY THE FOURTH DEPARTMENT WAS NOTED); DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS ON SPEEDY TRIAL GROUNDS; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the People were not timely ready for trial and defense counsel was ineffective for failing to move for dismissal on “speedy trial” grounds:

… [T]he People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they requested to have the arraignment adjourned to “May 28th, as soon as we can get [defendant] from downstate.” Yet, the record reflects that the People engaged in no efforts to have defendant produced until May 29, when they filed their application pursuant to CPL 560.10, and we reject their generic assertion that this constituted diligent and reasonable efforts … . The People could not proceed to trial without having first arraigned defendant and because the delay was caused by the People’s own inaction, the 16 days from May 13 through May 29 are chargeable to the People, thus exceeding the seven days remaining on the speedy trial clock. As such, we conclude that the People were not ready for trial within the applicable six-month statutory period … .

Having concluded that defense counsel failed to make a meritorious speedy trial motion, we must determine whether this failure, alone, was so egregious and prejudicial as to amount to ineffective assistance … . We reject the People’s contention that this speedy trial motion involved the resolution of various novel and complex issues … , as it has long been settled in this Department that CPL 560.10 (1) (a) imposes upon the People a “responsibility to petition the trial court for an order producing defendant for ‘arraignment or prosecution’ ” … — a principle which is not diminished by the Fourth Department’s contradictory holding in People v Taylor (57 AD3d at 1518-1519 …). As such, and noting that the timeline underlying the speedy trial analysis is uncontroverted, we find that defendant was denied meaningful representation due to defense counsel’s failure to pursue a meritorious speedy trial motion and, thus, his motion to vacate should have been granted … .. Lastly, as the time to prosecute defendant under this indictment has expired, the indictment must be dismissed. People v Shuler, 2024 NY Slip Op 05154, Third Dept 10-17-24

Practice Point: In the Third Department [but apparently not in the Fourth Department (People v Taylor (57 AD3d at 1518-1519)?] any delay in producing a defendant for arraignment after the People become aware the defendant is in custody is attributable to the People.

Practice Point: Defense counsel’s failure to move to dismiss on speedy-trial grounds is ineffective assistance.

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY TO DETERMINE THE WAIVER WAS VOLUNTARY AND INTELLIGENT; THE INFORMATION IN THE WARRANT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT’S CELL PHONE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the judge should not have summarily denied defendant’s request to represent himself and the motion to suppress evidence retrieved from the defendant’s cell phone should have been granted:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

… [T]he warrant was supported by [the investigator’s] affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 05152, Third Dept 10-17-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge must conduct a colloquy to ensure the waiver of the right to counsel is voluntary and intelligent.

Practice Point: Here the search warrant did not demonstrate probable cause to believe the search of defendant’s cell phone would reveal evidence of criminal possession of a controlled substance.

 

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DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT OF THE SORA RISK-LEVEL PROCEEDING TO ALLOW REVIEW OF DOCUMENTS WHICH MAY BE RELEVANT TO A DOWNWARD DEPARTURE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing County Court and ordering a new SORA risk-level assessment, determined defendant’s attorney’s request for an adjournment to allow review of documents relevant to a downward departure should have been granted:

… County Court improvidently exercised its discretion when it denied the defendant’s request for an adjournment. The defendant’s open release date two days after the hearing was not a sufficient reason to deny the defendant’s request for an adjournment (see Correction Law § 168-l[8]). Further, the documents discussed by the defendant, including documents relating to his participation in treatment programs, may be relevant to support an application for a downward departure from his presumptive risk level. “A defendant seeking a downward departure from the presumptive risk level has the initial burden of ‘(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the . . . Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence'” … . “In making the determinations the court shall review . . . any relevant materials and evidence submitted by the sex offender” … . “An offender’s response to treatment, if exceptional, can be the basis for a downward departure” … . As the documents cited by the defendant were potentially material, the adjournment request was not made for the purposes of delay, and the necessity of the request was not due to a failure of due diligence, the court should have granted the request to adjourn the SORA hearing so that the defendant’s counsel could review the documents and determine whether they should be offered to the court as evidence at the hearing. People v Eldridge, 2024 NY Slip Op 05117, Second Dept 10-16-24

Practice Point: Here defense counsel’s request for an adjournment of the SORA risk-level proceeding to allow review of documents which may be relevant to a downward departure should have been granted. Defense counsel was not able to meet with the defendant until 15 minutes before the hearing, the request was not made to delay, and the fact that defendant had an upcoming open release date was not a sufficient reason to deny an adjournment.

 

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THE STIPULATION SIGNED BY DEFENSE COUNSEL, IN AN EFFORT TO AVOID SHOWING CHILD PORNOGRAPHY TO THE JURY, EFFECTIVELY REMOVED THE MENS REA ELEMENT OF THE CHILD PORNOGRAPHY CHARGES FROM THE JURY’S CONSIDERATION; CONVICTION REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (SECOND DEPT). ​

The Second Department, reversing defendant’s child-pornography conviction, over a two-justice dissent, determined that the stipulation signed by defense counsel and presented to the jury (in an effort to avoid showing the pornography to the jury) effectively removed from the jury consideration of the mens rea element. Therefore, defendant did not receive effective assistance of counsel:

A few days before the trial commenced, defense counsel and the prosecutor executed a stipulation entitled “Stipulation Elements of Crime.” Among other things, they stipulated to the fact that certain videos underlying the counts of promoting a sexual performance by a child “depicted . . . a performance, which included sexual conduct by a child less than 17 years of age,” and similarly stipulated as to the content of certain images underlying the counts of possessing a sexual performance by a child. …

… [T]he stipulation went on to state, in pertinent part, that “whoever possessed each of the . . . videos, promoted a performance, which included sexual conduct by a child . . . with knowledge of the character and content of the videos,” and “whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child” … . A reasonable reading of this additional language in the stipulation is that possession alone is tantamount to promoting a performance with knowledge “of the character and content of” the videos, which is required to support a conviction of promoting a sexual performance by a child under Penal Law § 263.15, and that possession alone is tantamount to knowing “possession or control” or “access[ ] with intent to view,” which is required to support a conviction of possessing a sexual performance by a child under Penal Law § 263.16. Thus, this additional language in the stipulation set forth definitions of the crimes that had no mens rea element … , under which possession alone could support a guilty verdict for each crime. People v Guerra, 2024 NY Slip Op 04978, Second Dept 10-9-24

Practice Point: Defense counsel signed a stipulation in an effort to avoid showing child pornography to the jury. The majority concluded the stipulation effectively eliminated the mens rea element from the jury’s consideration. The conviction was reversed on ineffective assistance grounds.

 

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FAILURE TO PRESERVE VIDEO SHOWING THE AREA WHERE PLAINTIFF SLIPPED AND FELL PRIOR TO THE FALL WARRANTED AN ADVERSE INFERENCE CHARGE; UNDER THE FACTS, STRIKING DEFENDANT’S ANSWER WAS TOO SEVERE A SANCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area prior to the fall, but it had been overwritten by then:

Plaintiffs’ counsel sent defendants a preservation letter approximately seven days following the accident. Defendants responded by producing several minutes of video of the accident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the alleged hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not available to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the accident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s accident date.

Plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be definitively resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation so as to warrant an adverse inference sanction … . Lev v Eataly USA LLC, 2024 NY Slip Op 04910, First Dept 10-8-24

Practice Point: Plaintiff’s counsel requested video of “the incident” in this slip and fall case, which was provided. Nine months later plaintiff’s counsel requested video showing the area prior to the fall re: the issue of defendant’s notice of the condition. By that time the video had been overwritten. Plaintiff was entitled to an adverse inference jury instruction. Striking the defendant’s answer was deemed too severe a sanction.

 

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