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Defendant’s Request for New Assigned Counsel Was Not Supported by Sufficient Facts to Warrant Inquiry by the Court

In finding defendant’s request for new assigned counsel was properly denied, the Second Department explained the relevant analytical criteria:

A defendant may be entitled to new assigned counsel upon a showing of good cause, such as a conflict of interest or other irreconcilable conflict with counsel … . “Whether counsel is substituted is within the discretion and responsibility’ of the trial judge, and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]'” … . Where a seemingly serious request is made, the trial court is obligated to conduct at least a “minimal inquiry” to determine the nature of the conflict and a possible resolution … .

In People v Porto, the Court of Appeals delineated the threshold necessary to require a court to make further inquiry, to wit, a defendant’s request to substitute counsel must contain “specific factual allegations of serious complaints about counsel'” … . Here, no serious complaint about counsel was raised by the defendant … . Instead, the defendant, who already had at least one prior change of counsel, stated that he wanted new counsel because he didn’t “want [his current counsel] anymore. First and foremost [he is] not helping me at all. I don’t see myself even surviving the jungle right here with him even representing me.” The defendant further stated, “I don’t want to proceed with him. And I’m going to tell you, I’m not a lawyer or nothing like that. But I think I can do better than him.” The defendant’s bare assertions did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant’s representation by assigned counsel, and did not create a duty of inquiry on the part of the trial court … . Under these circumstances, the trial court providently exercised its discretion in denying the defendant’s request … . People v Ward, 2014 NY Slip Op 07193, 2nd Dept 10-22-14

 

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Request for Redacted Signatures on Sheriff’s Department Overtime Records Properly Granted—-Attorney’s Fees Properly Awarded

The Second Department determined the sheriff’s department did not sufficiently justify the redaction of signatures on the requested documents (overtime records) and the petitioners were entitled to attorney’s fees:

In a proceeding pursuant to CPLR article 78 challenging denial of a Freedom of Information Law (hereinafter FOIL) request, the agency denying access has the burden of demonstrating that the information requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]…). This showing requires the entity resisting disclosure to “articulate a particularized and specific justification for denying access'” … . “Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . Because FOIL is “based on a presumption of access to the records” …, “FOIL compels disclosure, not concealment'” wherever the agency fails to demonstrate that a statutory exemption applies … . * * *

The agency claimed that redaction was proper pursuant to the “unwarranted invasion of personal privacy” statutory exemption (Public Officers Law § 87[2][b]) since disclosing the captains’ signatures “would result in economic or personal hardship to the subject party” and the signatures were “not relevant to the work of the agency” (Public Officers Law § 89[2][b][iv]). However, because the agency failed to proffer more than conclusory assertions supporting these claims, the Supreme Court correctly determined that the agency failed to meet its burden of demonstrating that the information requested fell within this statutory exemption (see Public Officers Law § 89[5][e], [f]…), and thus, properly directed disclosure of the records without these redactions.  Matter of Jaronczyk v Mangano, 2014 NY Slip Op 070164, 2nd Dept 10-22-14

 

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Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant’s Prior Attorney’s Statement to the Police that He Was No Longer Representing the Defendant Was Enough

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the police properly questioned the defendant without an attorney present after they were told by defendant's prior attorney that the he no longer represented the defendant. Defendant was represented on a robbery charge. After defendant indicated he had knowledge of the commission of an unrelated murder, he entered a plea bargain which promised a reduced sentence if he provided useful information about the murder.  The police who interviewed the defendant about the murder did not believe his story and the defendant did not receive a reduced sentence for the robbery.  Subsequently, the police suspected defendant was himself involved in the murder.  Before questioning the defendant, the police met with the attorney who had represented the defendant on the robbery charge.  The police did not tell the attorney why they wanted to question the defendant. The police then elicited statements from the defendant without any further inquiry about whether he was represented by counsel.  The dissent argued that there was ambiguity about the defendant's representational status, the burden was on the police to make sure the defendant was no longer represented before questioning him, and that burden was not met here:

Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to [defendant's attorney] exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant's right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more … .  People v McLean, 2014 NY Slip Op 07085, CtApp 10-21-14

 

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County Court Was Not Required to Inquire Whether Defendant Wished to Seek New Counsel—Defendant’s Counsel of Choice Was Ill and County Court Ordered the Trial to Go Forward with Substitute Counsel (Selected by Defendant’s Counsel of Choice) After Denying Defendant’s Request for an Adjournment

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined defendant was not denied the right to his counsel of choice when County Court ordered the trial to go ahead with substitute counsel (selected by defendant's counsel of choice) because defendant's counsel of choice was ill.  The case turned on its facts.  Defendant did not request an adjournment to seek new counsel.  County Court was not required to ask the defendant whether he wished to seek new counsel:

A defendant who does not require appointed counsel has a right under both Federal and State constitutions to choose who will represent him … . “The constitutional guarantee to be represented by counsel of one's own choosing is a fundamental right” … . Nevertheless, “the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” … .

In particular, we have held that a defendant may not use the right to counsel of choice “as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel” … . In short, appellate courts must recognize “a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar” … .

Significantly, in the present case, defendant does not contend that he expressly requested new counsel … and that the request was wrongly denied. Rather, defendant's principal argument is that when he moved, through counsel, for adjournment, County Court was obliged to inquire of him whether he was in fact seeking new counsel. We disagree.

…[I]n this case, County Court did not violate any of defendant's constitutional rights by denying the adjournment motions without that inquiry. On the record before us on direct appeal …  no communication was made to County Court from which it would appear that defendant was asking for the opportunity to retain new counsel, or for an adjournment in the hope that [his counsel of choice] would recover quickly enough to become his trial counsel. Rather, defendant simply sought an adjournment to give [substitute counsel] more time to prepare. Under these circumstances, there was no obligation on the part of County Court to inquire as to whether defendant was seeking new counsel. People v O'Daniel, 2014 NY Slip Op 07087, CtApp 10-21-14

 

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Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole … . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” … or fell below the objective standard of reasonableness required by the Federal Constitution … . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation …, but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy …, would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability …that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, CtApp 10-21-14

 

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Client May Pursue a Legal Malpractice Action Without Appealing the Ruling Upon Which the Malpractice Allegation Is Based Where It Has Not Been Demonstrated the Appeal Is Likely to Succeed

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the plaintiff's failure to appeal a ruling that plaintiff's action was time-barred did not preclude plaintiff from bringing a legal malpractice action against the attorneys who represented the plaintiff in the time-barred action.  The failure to appeal would only act as a bar to the legal malpractice action if the defendants demonstrated the appeal was likely to have succeeded:

Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element . We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result. Contrary to defendants' assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally … . Grace v Law, 2014 NY Slip Op 07089, CtApp 10-21-14

 

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Videotaped Interview Indicated Defendant Did Not Understand His Right to Counsel—The Videotaped Statement, As Well As the Prior Oral and Written Statements, Should Have Been Suppressed

The First Department determined the People did not meet their burden of demonstrating the defendant understood his Miranda rights at the time he waived them.  After waiving his rights and making an oral and written statement, the defendant spoke with the Assistant District Attorney (ADA).  During that conversation, which was videotaped, the defendant gave responses which indicated he did not understand he had the right to talk to his own attorney before speaking with the ADA.  The court determined that the videotaped statement, as well as the prior oral and written statements, should have been suppressed:

…[I]t is not clear that this 18-year-old defendant with no prior criminal history, who could not read or write, ever understood his right to counsel nor the consequences of waiver. The evidence shows that defendant responded “yes” to questions when asked if he understood his rights. Then, immediately afterwards, defendant expressed confusion in understanding his right to counsel. As such, the People failed to present evidence that established defendant sufficiently understood the immediate import of the Miranda warnings. Moreover, ADA Elliot’s explanations failed to clarify for defendant the concept of his right to counsel. Thus, given defendant’s age, illiteracy, unfamiliarity with the criminal justice system, and statements expressing confusion about his Miranda rights, it is evident that the People failed to establish a knowing and intelligent waiver of Miranda rights … . People v Adames, 2014 NY Slip Op 07063, 1st Dept 10-16-14

 

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Assignment of New Counsel and Adjournment of Trial Over Defendant’s Objection Was Proper—Defense Counsel Had Represented the Confidential Informant in the Past—District Attorney Objected to Preclusion of Confidential Informant’s Testimony as a Solution

The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant’s objection, the assignment of new counsel because of a conflict of interest.  Assigned counsel had represented the confidential informant (CI).  The court was faced with either assigning new counsel or ruling that the CI could not testify:

County Court did not abuse its discretion in substituting assigned counsel against defendant’s wishes … . A criminal defendant’s right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel’s continued representation of the defendant would present a conflict of interest … . Here, upon learning of the CI’s identity,[FN2] defendant’s original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest … . Faced with “the dilemma of having to choose between undesirable alternatives” in addressing the conflict …, County Court’s decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented … . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14

 

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Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance

The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *

Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14

 

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Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply

The Third Department reversed defendant’s conviction by guilty plea, finding that the defendant’s waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:

A trial court must ensure that a defendant’s waiver of the right to appeal is knowing, intelligent and voluntary … . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, “separate and distinct from those rights automatically forfeited upon a plea of guilty” … . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about “the circumstances surrounding the document’s execution” or confirm that defendant had been fully advised by counsel of the document’s significance … . As such, the appeal waiver was invalid … .

On the merits of defendant’s appeal, a criminal defendant’s right to receive the assistance of counsel attaches at arraignment “and entails the presence of counsel at each subsequent critical stage of the proceedings” … . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel … . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury … or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process … . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied … . Further, we observe that, while defendant’s motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before County Court … . Inasmuch as defendant was not afforded an opportunity to consult with counsel “and make an informed decision as to whether to appear before the [g]rand [j]ury”…, the resulting deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment … . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14

 

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