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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

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Attorneys Represent the Administrators Individually and Not the Estate Itself/Therefore an Estate May Seek Restitution of Attorney’s Fees Paid from the Estate for the Representation of an Executor Who Defrauded the Estate

After it had bee determined the first executor (Carbone) had looted the estate, the new executor sued the law firm which defended the first executor.  The Second Department determined that the law firm could not be sued by the estate for legal malpractice because the retainer agreement with the first executor did not encompass “administration of the estate.”  Therefore, absent allegations of fraud and collusion with the first executor, the law firm, which was not in privity with the estate, could not be sued for malpractice with respect to the estate.  However the cause of action for restitution, which alleged the payment of lawyers’ fees for the representation of the first executor from the estate, could go forward:

This Court has held that “an attorney represents the administrators individually and not the estate itself” … . Accordingly, an attorney may recover fees from the estate only where the services rendered benefit the estate … . Where a plaintiff asserts a cause of action for restitution, the ” essential inquiry'” is ” whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'” … . In determining whether this equitable remedy is warranted, a court should ” look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant’s conduct was tortious or fraudulent'” … .Here, the plaintiff alleged that the [attorney’s] fees for representing Carbone were paid from estate assets even though those services were not beneficial to the estate and were, in fact, adverse to it. Thus, the plaintiff has pleaded facts sufficient to assert a cause of action for restitution … . Betz v Blatt, 2014 NY Slip Op 02554, 2nd Dept 4-16-14

 

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Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer’s Credibility

The First Department, over a dissent, found that  the trial record was insufficient to determine whether defendant’s counsel was ineffective for failing to ask to reopen a suppression hearing when the trial evidence called into question the arresting officer’s credibility.  The conviction was affirmed without prejudice and the matter was sent back for further proceedings under a motion to vacate the conviction pursuant to CPL 440.10:

The issue of effective assistance of counsel is generally not reviewable on direct appeal, because it involves facts dehors the record, such as trial counsel’s strategy … . Accordingly, a defendant who seeks to bring an ineffective assistance of counsel claim usually must first expand the record by way of a CPL 440.10 motion before this Court can consider it … . However, there are rare instances where the full record is sufficient to resolve the issue of counsel’s effectiveness without a 440.10 motion … . This is not one of those rare cases.  * * *

The extant record potentially supports a finding that counsel fundamentally misunderstood the necessity of making the motion to reopen the suppression hearing during trial, rather than waiting for a motion to set aside the verdict, in the event of a conviction. Defense counsel’s remarks at sentencing, seemingly prompted by the court’s denial of the motion to set aside the verdict, were a belated attempt to explain counsel’s failure to move to reopen the hearing. Whether defense counsel was effective or not necessarily requires an evaluation of the credibility and logic of the proffered explanation, that defense counsel was afraid he would “lose that jury” and that he believed the witness “was on the ropes.” Although defense counsel may have genuinely been hopeful that the jury would acquit his client, this explanation cannot be accepted at face value. After all, as the trial court’s decision indicates, had defense counsel timely moved to reopen the suppression hearing, the application would have been granted, and the court could have quickly ruled upon it while giving the jury a short recess. The “witness” referred to was the arresting officer, and was available. On the other hand, there may have been legitimate concerns about the jury undeveloped on this record. In short, we cannot decide on the extant record whether defense counsel’s failure to move to reopen the hearing was truly “strategic.”  People v Medina-Gonzalez, 2014 NY Slip Op 02531, 1st Dept 4-15-14

 

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Failure to Allege a Favorable Result Would Have Obtained “But For” the Attorney’s Alleged Malpractice Required Dismissal of the Complaint

The Second Department determined a legal malpractice action was properly dismissed because the plaintiff failed to adequately allege that but for the malpractice the result would have been favorable to the plaintiff.  The court explained the elements of a legal malpractice action:

To recover damages in a legal malpractice action, a plaintiff must establish “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 plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . ” A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'” … . Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Benishai v Epstein, 2014 NY Slip Op 02404, 2nd Dept 4-9-14

 

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When the Police Are Aware Suspect Is Represented by an Attorney and the Attorney’s Assistance Is Specifically Requested, the Attorney Must Be Contacted Before Conducting a Lineup Identification Procedure

Although the issue was not raised by the facts in the case, the Second Department noted the proper procedure for a lineup when the police are aware the suspect is represented by an attorney:

Where police are “aware that a . . . defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney,” the police may not proceed with a lineup procedure, “without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear” … . People v Blyden, 2014 NY Slip Op 02448, 2nd Dept 4-9-14

 

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Statutory Attorney’s Fees Awarded in a Human Rights Law Action Should Not Be Added to the Jury Award to Determine the Amount of the Contingency Fee

The Court of Appeals, in a full-fledged opinion by Judge Lippman, explained how attorney’s fees should be calculated when there is a contingency fee agreement which does not make clear how the contingency fee is affected by the award of statutory attorney’s fees (in addition to the jury award) pursuant to the Human Rights Law.  The attorney claimed that the contingency should be calculated after adding the statutory fees to the jury award. The court disagreed:

…[B]oth federal precedent and instructive decisions from our sister states evince that,”absent a contractual provision to the contrary, the trend is to calculate the contingency fee based on the amount of the judgment exclusive of the fee award, and then credit the fee award to the client as an offset against the contingency fee owed. Under this approach, the attorney should be entitled to receive either the contingent fee calculated on the amount of the damage recovery exclusive of any court-awarded fees, or the amount of the court-awarded fee, whichever is greater”… .

In the context of the present case, concerning construction of retainer agreements in conjunction with attorneys’ fees awarded pursuant to the NYCHRL (New York city Human Rights Law), such an approach comports with our precedent holding that ambiguous fee agreements should be interpreted against the drafting attorney … .

In addition, permitting counsel to collect a statutory award that exceeds the amount due under a contingency fee agreement advances the “uniquely broad and remedial purpose” of the NYCHRL by incentivizing the private bar to represent civil rights plaintiffs even where any damage award is likely to be insubstantial … . In this regard, freedom of contract is also respected since, in the event that the statutory award is less than the contingency fee, deducting the court-awarded fees from the sum owed under the contract ensures that the attorney receives, and the client pays, no more or less than they bargained for … .

On the facts before us, we need not decide whether a retainer agreement entitling an attorney to court-ordered counsel fees in addition to the full contingency fee would be enforceable. We would note, however, that such an arrangement would be subject to requisite scrutiny under applicable laws and rules controlling the reasonableness of attorney compensation… .  Albunio v City of New York, 2014 NY Slip Op 02325, CtApp 4-3-14

 

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Appeals Not Pursued for a Decade or More Properly Dismissed

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant’s right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

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Defense Counsel Did Not Provide Effective Assistance

The First Department determined the defendant did not receive effective assistance of counsel.  Counsel did not object to inadmissible hearsay which corroborated the complainant’s testimony, counsel did not subpoena medical records or call a medical expert despite proof at the first trial the evidence of complainant’s injury was unsupported, and counsel did not impeach the complainant by confronting her with her prior inconsistent statements:

in a case that depended heavily on the credibility of the complainant, counsel failed to object to hearsay testimony indicating that several unnamed out-of-court declarants supported the complainant’s version of the incident. These bystander statements were not admissible under any theory, and we reject the People’s arguments to the contrary. These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions. At a prior trial, at which defendant was represented by different counsel, and which ended in a hung jury, the content of these declarations was not placed in evidence.

We are unable to discern any strategic basis for counsel’s failure to object to this highly prejudicial hearsay evidence. Any benefit that defendant may have gained when his counsel attempted to suggest that a police witness fabricated the existence of the bystander declarations was clearly outweighed by the prejudicial effect of having the jury hear the declarations in the first place. Defendant had nothing to lose, and much to gain, by keeping the declarations completely out of the case. Furthermore, the trial record reveals that counsel was unaware, and apparently surprised, that the content of these declarations was not in evidence at the first trial. This tends to suggest that counsel’s failure to object had nothing to do with strategy. People v Ugweches, 2014 NY Slip Op 02333, 1st Dept 4-3-14

 

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Failure to Challenge Conviction Rendered Invalid by Not Advising Defendant of the Period of Post Release Supervision [PRS] Constitutes Ineffective Assistance of Counsel

The First Department determined the defendant did not receive effective assistance of counsel when he was sentenced as a predicate felony offender.  Counsel failed to challenge a 2000 conviction upon a guilty plea which was invalid because defendant was not apprised of the period of post release supervision (PRS) which was subsequently imposed. The fact that the PRS was later removed from the sentence did not cure the error because the defendant had already served four years of PRS and had spent time in jail for a violation of supervision:

In connection with the 2000 conviction, Supreme Court, New York County added postrelease supervision to the sentence in 2009 to cure an unlawful administrative imposition of PRS … . In May, 2010 that court removed PRS from the sentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to the People’s sole argument on appeal addressing the Catu issue [the initial failure to advise defendant of the period of post release supervision], the vacatur of defendant’s PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. …

In connection with the instant CPL 440.20 motion [motion to vacate the sentence], the attorney who represented defendant at his 2010 persistent violent felony offender adjudication and sentencing acknowledged that he had no strategic reason for failing to challenge the 2000 conviction, and that he never inquired into whether defendant had been advised about PRS at his 2000 plea proceeding. He further affirmed that had he been aware that the conviction was obtained in violation of Catu, he would have in fact challenged its use to enhance defendant’s sentence in this case. Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant’s 2000 conviction, or that the law was unclear on this issue… .  People v Fagan, 2014 NY Slip Op 02344, 1st Dept 4-3-14

 

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Elements of Prima Facie Tort Explained—Disinterested Malevolence Not Demonstrated

The Third Department, in finding the allegations insufficient to make out the cause of action, explained the elements of prima facie tort:

“To sufficiently allege a cause of action for prima facie tort . . . a plaintiff must plead the intentional infliction of harm without justification or excuse, which results in special damages, by one or more acts which would otherwise be lawful” … . Moreover, “there is no recovery in prima facie tort unless malevolence is the sole motive for the defendant’s otherwise lawful act” … . The act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Even egregious conduct by an attorney during the course of representing a client that aids to some degree the attorney’s client or the attorney’s practice generally will not satisfy the disinterested malevolence requirement of a prima facie tort, because such conduct is not motivated solely to harm the defendant … .

… While plaintiffs’ pleadings are liberally interpreted in the context of a CPLR 3211 (a) (7) motion, such liberal standard “will not save allegations that consist of bare legal conclusions or factual claims that are flatly contradicted by documentary evidence or are inherently incredible”  Wiggins & Kopko LLP v Masson, 517155, 3rd Dept 4-3-14

 

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