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Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel’s Objection

The Fourth Department reversed defendant’s intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel’s objection.  The court explained the relevant law:

It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction … . When a court does so, it impairs a defendant’s “unquestionabl[e] . . . right to chart his [or her] own defense” …; it may “undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses” …; and it indisputably “impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory” … . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense “constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant’s right to have the State bear the entire burden of proof” … . The 3rd Department has even stated that a court “is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense” … .

Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, “the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury” … . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence …, that he or she “withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof” (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here…, “[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal”… . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14

 

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Party Represented by Counsel at a Scheduled Court Appearance Has Not Failed to Appear

In affirming the termination of mother’s parental rights, the Fourth Department noted that a party who is represented by an attorney at a scheduled court appearance has not failed to appear:

A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” … . The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother’s attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default”… . Matter of Savanna G, 2014 NY Slip Op 04658, 4th Dept 6-20-14

 

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Mother Not Adequately Apprised of Her Right to Counsel—New Hearing Ordered

The Fourth Department determined a new hearing was required because mother was not adequately apprised of her right to counsel:

We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court’s inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel… . Matter of Seifert v Pastwick, 2014 NY Slip Op 04677, 4th Dept 6-20-14

 

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Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel

The Fourth Department, over a strong two-justice dissent, determined defendant’s motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People’s expert was allowed to testify about those prior consistent statements.  Defendant’s trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel’s failure to object to them constituted ineffective assistance:

… [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party’s case” … , here, the victim’s testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration … . In light of defense counsel’s opening statement that the relationship between defendant, the victim and the victim’s mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel’s failure to object to the prosecutor’s remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel’s summation challenging the credibility of the victim and her motivation for making the accusations …, we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel … . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14

 

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Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed

In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants’ represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:

The first cause of action, alleging legal malpractice, accrued at the time that plaintiff’s appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal … . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.

Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the 2nd Department’s affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked “a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” … . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended… . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14

 

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Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

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Failure to Advise Respondent of His Right to Counsel at a Temporary Removal Hearing Not Condoned—Reversal Not Required Because No Evidence from the Temporary Removal Hearing Was Elicited in the Subsequent Neglect Proceedings

The Third Department determined that Family Court’s failure to advise respondent on his right to counsel in a temporary removal hearing did not require the reversal of a subsequent neglect adjudication.  None of the evidence elicited at the temporary removal hearing was used during the neglect proceedings:

It is well established that failure to fully advise a respondent of his or her right to counsel is a deprivation of a fundamental right that requires reversal of any “resulting adjudication” in a proceeding pursuant to Family Ct Act article 10, whether or not prejudice is shown … . “[A] Family Ct Act § 1022 removal hearing is no exception” to this requirement … . Here, Family Court undisputedly failed to advise respondent of his right to counsel “[w]hen [he] first appear[ed] in court . . . before proceeding” with the temporary removal hearing (Family Ct Act § 262 [a]). We do not condone this failure … .

Nonetheless, we agree with the attorney for the children that the circumstances present here are distinguished from the precedent cited above –not due to the lack of any resulting prejudice, which would not suffice — but rather and specifically relative to whether the determination ultimately rendered after the fact-finding hearing constituted a “resulting adjudication.” Here, the neglect adjudication was based solely upon evidence elicited during the course of the fact-finding hearing; no testimony from the temporary removal hearing — in which respondent did not participate — was introduced. The adjudication following fact-finding did not therefore rely, in any part, on the evidence adduced at the temporary removal hearing … . Matter of Elijah ZZ, 2014 NY Slip Op 04280, 3rd Dept 6-12-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Defendant-Attorney Can Seek Contribution from Succeeding Attorney Who Contributed to Plaintiff’s Damages

The Second Department noted that a claim for contribution can be made by an attorney-defendant against a succeeding attorney who may have contributed to plaintiff’s damages.  The court also explained the nature of common law indemnification in this context:

“In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages” … . “[T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors” … . A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney’s negligence may have contributed to or aggravated the plaintiff’s injuries … . * * *

“[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor'” … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'” … . Rehberger v Garguilo & Orzechowski LLP, 2014 NY Slip Op 04181, 2nd Dept 6-11-14

 

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Prohibition Proceeding Was the Proper Vehicle to Contest the Appointment of a Special Prosecutor—the District Attorney Had Disqualified Himself from an Election-Related Investigation and Successfully Applied for the Appointment of a Special Prosecutor

The Court of Appeals determined an Article 78 proceeding sounding in “prohibition” was the appropriate vehicle to contest the appointment of  a special prosecutor. The district attorney sought to disqualify himself from an election-related investigation and successfully applied to the Deputy Chief Administrative Judge for the NYC Courts for an appointment of a special prosecutor.  The petitioner then brought the prohibition proceeding to contest the appointment.  The appellate division dismissed the petition finding the “prohibition” action inappropriate.   The Court of Appeals determined prohibition was the correct action and the special prosecutor was validly appointed:

The Appellate Division denied the petition and dismissed the proceeding. It held that relief by prohibition was unavailable because the conduct that petitioner was seeking to prevent was not “the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice” but rather a “purely investigative function” that was “executive in nature” (Working Families Party v Fisher, 109 AD3d 478, 480 [2d Dept 2013]). * * *

The Appellate Division erred in holding that an article 78 proceeding in the nature of prohibition is an inappropriate remedy in this case. We recently restated the rule that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court” … . While the power to grant prohibition should be exercised sparingly, its availability in cases like this serves an important purpose. When the validity of the appointment of a prosecutor is in question, the question should where possible be given a prompt and definitive answer. It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor. Matter of Working Families Party v Fisher, 2014 NY Slip Op 04116, CtApp 6-10-14

 

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