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Plaintiffs Entitled to Attorney’s Fees Pursuant to 42 USC 1988—Criteria Explained

The Fourth Department reversed Supreme Court and found that plaintiffs were entitled to attorney’s fees under 42 USC 1988.

Plaintiffs had brought an Article 78/declaratory judgment proceeding alleging that they had been improperly removed by the city from an approved list of certified lead inspectors. The plaintiffs prevailed and were returned to the list.  Although the Article 78/declaratory judgment determination was made on state grounds, a federal “denial of due process” claim had also been made.  The Fourth Department explained the criteria for the award of attorney’s fees in this context:

The governing statute, 42 USC § 1988 (b), provides that, “[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . .” “Although some courts have held, as did the court in this case, that the decision whether to grant an award is entirely discretionary . . . this is incorrect . . . [T]he prevailing party ordinarily should recover reasonable fees unless special circumstances would render such an award unjust’ ” … . Where, as here, “relief is sought on both State and Federal grounds, but nevertheless awarded on State grounds only,” attorney’s fees may be awarded if a constitutional question is involved and such question is “substantial and arises out of a common nucleus of operative facts as the State claim” … . “The threshold for establishing substantiality of a Federal claim is minimal: the claim must not be wholly insubstantial,’ obviously frivolous’ or obviously without merit’ “… . Cerberus Props LLC v Kirkmire, 2014 NY Slip Op 06723, 4th Dept 10-3-14

 

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Right to Counsel Did Not Attach When Community Activist Told Police Defendant’s Attorney Was On His Way to the Station

The Fourth Department determined that the right to counsel attaches only when the defendant or his attorney invokes it, not when someone informs the police defendant’s attorney is on his way to the station:

We reject defendant’s contention that his right to counsel indelibly attached when the community activist told the arresting police officers at the television station that defendant had an attorney who was on his way. “It is well settled that the right to counsel is personal’ to the accused… and thus cannot be invoked by a third party on behalf of an adult defendant” … . Thus, where, as here, a third party not affiliated with a lawyer or law firm indicates that defendant may have an attorney, “it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue’ ” … . Absent such direct communication, the police herein had no duty to investigate whether defendant was represented by counsel, and defendant’s right to counsel did not indelibly attach until an attorney later called the police directly. Inasmuch as all questioning ceased at that time, we conclude that the court properly refused to suppress the statements defendant made before that time.  People v McCray, 2014 NY Slip Op 06720, 4th Dept 10-3-14

 

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Continuing Representation Doctrine (Tolling the Statute of Limitations) Explained

The Fourth Department reversed Supreme Court finding that the legal malpractice actions should not have been dismissed as time-barred because there were questions of fact whether the continuing representation doctrine tolled the statute of limitations.  The plaintiff Town alleged that defendant lawyers did not advise the Town of the proper procedure for appointing a hearing officer, which resulted in the annulment of a proceeding terminating a Town employee.  The question was whether the attorneys’ subsequent involvement in attempting to rectify the mistake constituted continuing representation such that the three-year statute was tolled:

Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, “ongoing and developing phases of the [same] litigation” … . We cannot say as a matter of law that all of defendants’ acts “were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation” to perform the specific task of terminating a Town employee … . Inasmuch as “[a] question of fact exists on this issue, . . . summary judgment is inappropriate” … .

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were “merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended” … . Here … the Town “immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected” … .

Although defendants correctly contend that the continuous representation doctrine requires that there be ” continuing trust and confidence in the relationship between the parties’ ” … , there are triable issues of fact whether the Town ever lost such trust and confidence in defendants. Town of Amherst v Weiss, 2014 NY Slip Op 06411, 4th Dept 9-26-14

 

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Plea Colloquy of Co-Defendant Was Inadmissible Hearsay—Court’s Granting of Defendant’s Request to Have the Colloquy Read to the Jury Over Defense Counsel’s Objection Deprived Defendant of His Right To Counsel

The First Department reversed defendant’s conviction because the court granted the defendant’s request to read co-defendant’s plea colloquy to the jury over defense counsel’s objection.  The colloquy was inadmissible hearsay.  Defense counsel alone can determine what evidence is introduced on defendant’s behalf:

Defendant’s constitutional right of confrontation was violated when the court read the transcript of the codefendant’s guilty plea allocution to the jury. The codefendant’s statements by which she inculpated defendant, were testimonial hearsay by a nontestifying declarant, whom defendant did not have a prior opportunity to cross-examine (see Crawford v Washington, 541 US 36 [2004]).

The People’s argument that the Confrontation Clause was inapplicable because defendant himself introduced the evidence is unavailing. Although defendant personally requested the introduction of the evidence, he was not appearing pro se. Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney … . Thus, defendant was deprived of his right to counsel when the court admitted the evidence solely based on his own request, over his attorney’s vigorous and consistent opposition … . People v Lee, 2014 NY Slip Op 06374, 1st Dept 9-25-14

 

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Five-Month Delay In Disclaiming Coverage—Insurer Estopped

The Second Department determined the insurer’s delay in disclaiming coverage in a legal malpractice action prejudiced the attorney.  The insurer was therefore estopped from disclaiming coverage:

Where, as here, the matter does not involve death or bodily injury, the untimely disclaimer by an insurer does not automatically estop the insurer from disclaiming on the basis of late notice unless there has been a showing of prejudice to the insured due to the delay … . Although the court did not make a determination that [the attorney] was prejudiced by the defendants’ approximate five-month delay in disclaiming coverage, based upon this record, [the party injured by the alleged malpractice] made a sufficient showing of prejudice to [the attorney]due to the [insurer’s] late disclaimer such that the defendants are estopped from disclaiming coverage … .Moreover, the purported reason for the disclaimer of coverage was evident on the face of the original complaint, and did not require any additional investigation by the insurer … . The [insurer] failed to rebut this showing. B & R Consol LLC v Zurich Am Ins Co, 2014 NY Slip Op 06287, 2nd Dept 9-24-14

 

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Defense Counsel Should Have Been Allowed to Cross-Examine Cooperating Accomplice/Witness to Demonstrate Motivation and Bias

The First Department, in a full-fledged opinion by Justice Acosta, determined that the curtailment of cross-examination of a cooperating witness deprived defendant of his right to confront the witnesses against him.  Four were charged in a robbery.  One of the four, referred to as “M,” entered a cooperation agreement and testified against the defendant. Defense counsel was prohibited from asking M a line of questions intended to reveal M’s motivation and bias:

Here, defendant sought … [to question] M. in an attempt to cast doubt on his credibility by revealing his bias and motive to fabricate testimony. Defense counsel’s theory was that M. had implicated defendant in the prior uncharged robberies in order to bolster the value of his cooperation agreement with the People. This was unquestionably an appropriate trial strategy, since “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination” … . That M. intended to invoke his Fifth Amendment privilege and refuse to answer the questions does not abrogate defendant’s Sixth Amendment right of confrontation. As an accomplice witness, M.’s credibility, bias, and motive to fabricate were not collateral issues … . Therefore, defense counsel should have been permitted to question him on the prior crimes. If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony … . At a minimum, the court should have pursued the “least drastic relief” (typically reserved for “collateral matters or cumulative testimony concerning credibility”) by instructing the jury that it could consider M.’s invocation of the Fifth Amendment in determining his credibility … . People v McLeod, 2014 NY Slip Op 05926, 1st Dept 8-21-14

 

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Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error—The Prosecutor Effectively Told the Jury Another “Witness” Had Identified the Defendant, But that “Witness” Did Not Testify and Could Not, Therefore, Be Cross-Examined

The Second Department reversed defendant’s conviction because the prosecutor, in summation, had improperly been allowed to tell the jury that the person who provided the police with a tip must have identified the defendant as the perpetrator.  Because the person who provided the tip did not testify, the defendant was effectively deprived of the opportunity to cross-examine a “witness against him:”

During summation, the prosecutor strongly implied that whoever had provided the tip had implicated the defendant: “Someone calls 577-TIPS . . . . [The detective] gets this information and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I’m looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez.” After defense counsel’s objection to this remark was overruled, the prosecutor continued: “Gave Detective Lopez the following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies and gentlemen, I introduce you to Rick.” Defense counsel again objected, but the Supreme Court again overruled the objection.

The only purpose of the prosecutor’s improper comments was to suggest to the jury, in this one-witness identification case, that the complainant was not the only person who had implicated the defendant in the commission of the robbery (see People v Mendez, 22 AD3d 688, 689). Moreover, in overruling defense counsel’s objections, the Supreme Court “legitimized” the prosecutor’s improper remarks (People v Lloyd, 115 AD3d 766, 769). The defendant, of course, was given no opportunity to cross-examine the unnamed witness who had allegedly provided the tip … . The evidence against the defendant was not overwhelming, so there is no basis for the application of harmless error analysis … . To the extent that the defendant failed to preserve the claim by specific objection, we reach the issue in the exercise of our interest of justice jurisdiction, and reverse the judgment … . People v Benitez, 2014 NY Slip Op 05890, 2nd Dept 8-20-14

 

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Failure to Move to Sever Unrelated Counts of Indictment Constituted Ineffective Assistance of Counsel

The Second Department determined defense counsel’s failure to move to sever unrelated counts of the indictment constituted ineffective assistance of counsel:

In this case, based solely on the complainant’s identification, the defendant and his codefendant were charged with robbery in the first degree and robbery in the second degree in connection with a robbery that occurred on November 6, 2005. The same indictment also separately charged the defendant with four drug offenses and resisting arrest, stemming from his arrest at his mother’s home on January 16, 2006, despite the fact that the drug and resisting arrest charges had no connection to the November 6, 2005, robbery. Defense counsel failed to make an on-the-record pretrial motion to sever the robbery charges from the other charges and did not raise the issue at trial, and the defendant was tried on all counts in the indictment. * * *

As a result of defense counsel’s error, the same jury that heard evidence regarding the robbery also heard voluminous evidence concerning the defendant’s arrest and the large quantity of drugs found in his mother’s home. Consequently, the jury could have inferred that the robbery at issue was committed for a drug-related purpose, and it is probable that the improper joinder tainted the jury’s evaluation of the separate, unrelated incidents … . Under the circumstances presented here, the defendant was deprived of the effective assistance of counsel, based on defense counsel’s failure to make a proper pretrial motion to sever the charges of robbery from the drug charges. People v Hall, 2014 NY Slip Op 05802, 2nd Dept 8-13-14

 

Written Waiver of Conflict by Defendants Precluded Disqualification of Plaintiff’s Counsel

The Second Department reversed Supreme Court, finding that the motion by the defendants to disqualify plaintiff’s attorney (Brooks) based upon a conflict of interest should have been denied.  The defendants had signed a waiver after full disclosure of the conflict:

” [T]he disqualification of an attorney is a matter which rests 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, and the movant bears the burden on the motion'” … . Here, the Supreme Court improvidently exercised its discretion in granting the motion to disqualify Brooks …, as counsel for the plaintiff. Pursuant to the written waiver, the …defendants specifically waived any conflict of interest that might arise from Brooks’s representation of the plaintiff. The waiver fully informed the …defendants of the potential conflict of interest and, by executing the waiver, the … defendants consented to have Brooks represent them notwithstanding that conflict … . Grovick Props LLC v 83-10 Astoria Blvd LLC, 2014 NY Slip Op 05627, 2nd Dept 8-6-14

 

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Defense Counsel’s Failure to Request that the Jury Be Charged with an Affirmative Defense to Robbery First (Weapon Was Not Capable of Being Discharged) Constituted Ineffective Assistance

The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance:

…[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the jury the affirmative defense to robbery in the first degree that the object that appeared to be a firearm was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law § 160.15[4]…). “[T]he New York State constitutional standard for the effective assistance of counsel is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … . Thus, denial of a defendant’s fundamental right to counsel generally requires reversal of the conviction and a new trial… . People v Collins, 2014 NY Slip Op 05555, 2nd Dept 7-30-14

 

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