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Constitutionality of Statute Allowing Defective Sentence to Be Remedied by a Sentence Without Post Release Supervision (CPL 70.85) Is an Open Issue Which Should Be Decided by the Sentencing Court in the First Instance/Crawford Motion Relieving Counsel of Perfecting an Appeal Because of the Absence of Non-Frivolous Issues Should Not Have Been Granted

The Court of Appeals determined the Appellate Division should not have granted counsel’s motion to withdraw from representing the defendant on appeal on the ground the appeal would be “wholly frivolous.”  There is an issue whether the statute which allows resentencing the defendant to a term of imprisonment without post release supervision after post release supervision had been (illegally) administratively imposed is constitutional:

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this court upheld defendant Boyd's sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance.  Despite this open issue, counsel filed a motion pursuant to People v Crawford … arguing that there were no non-frivolous issues to be raised on defendant's behalf and asking to be relieved as counsel.  Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel.  The Appellate Division granted counsel's motion and affirmed the resentence, without addressing defendant's pro se contentions (96 AD3d 1515 [2012]).  * * *

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level.  We agree with defendant that the Appellate Division erred in granting the Crawford motion.  Without expressing any opinion on the ultimate merits, at the time defendant's appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel's motion.  As a result, a reversal and remittal for a de novo appeal is warranted… . People v Beaty, 84, CtApp 1-16-14

 

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence:

…[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant’s post-arrest silence cannot be used for impeachment purposes … . Further, ” an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth’ while the risk of prejudice is substantial'” … .

Here, over defense counsel’s objection, the prosecutor was permitted to impeach the defendant’s testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information “narrat[ing] the essential facts of his involvement in the crime” … . Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry… . People v Theodore, 2014 Slip Op 00246, 2nd Dept 1-15-14

 

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Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction.  The conviction had already been upheld on appeal.  But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel.  The writ was granted and, on appeal, the court determined defendant was entitled to a new trial.  Defense counsel was deemed ineffective (1) for failure to object to the elicitation of testimony about a threat which had been precluded by the trial judge, and (2) for using a flawed alibi defense (referring to the wrong days of the week) which gave the jury the impression the alibi witnesses were testifying falsely:

We conclude that “defendant has demonstrated the absence of any strategic or other legitimate explanation for his attorney’s” failure to object to the introduction of this prejudicial and previously precluded testimony … .  Moreover, after defense counsel failed to object to the admission of that precluded testimony, the prosecutor continued to use that testimony to full advantage, arguing on summation that the threat to the prosecution witness “puts the [d]efendant [at the crime scene] just as easily as any person you saw in there” … .  Defense counsel’s error in failing to object to the testimony of the prosecution witness “simply cannot be construed as a misguided though reasonably plausible strategy decision” …, and “ ‘is sufficiently serious to have deprived defendant of a fair trial’… . * * *

Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel … .  We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy… . People v Jarvis, 1009, 4th Dept 1-3-14

 

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea

The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea:

Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel’s erroneous assurances in this regard, defendant would have insisted on going to trial … . Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed… . People v Diallo, 104609, 3rd Dept 12-19-13

 

 

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In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives

The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer:

Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.”  While the decision to grant such an application is generally committed to the sound discretion of the trial court …, a party cannot ordinarily be compelled to litigate and, absent special circumstances – such as prejudice to a substantial right of the defendant or other improper consequences – discontinuance should be granted … . * * *

Class representatives have a duty to adequately and vigorously represent the interests of class members … .  Thus, if a class representative fails to maintain contact with class counsel or is otherwise no longer willing or able to serve in that capacity, he or she cannot fulfill the duties of a class representative and should withdraw … .  The remedy under such circumstances is not to penalize the entire class by forcing an unwilling plaintiff to remain in the litigation. Hurrel-Harring v State of New York, 517131, 3rd Dept 12-19-13

 

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Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:

Re: prosecutorial misconduct during summation, the Second Department wrote:

In summing up, a prosecutor “must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants’ mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as “an elaborate attempt to distract [the jury] from the real issues in this case” … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification about which child’s vagina he did or did not touch,” when the defendant, in fact, had asked whether the question concerned his paramour, the complainants’ mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant’s denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant’s right to testify and improperly suggested that he lied on the stand, when she referred to him as “an opportunist” who “took the stand, and . . . said what he thought he had to to save himself” … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .

Re: the ineffectiveness of defense counsel, the Second Department wrote:

During cross-examination by defense counsel, the People’s expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child’s disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child’s allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be “rather unique and idiosyncratic,” and more believable than “just a global statement that I was touched.” Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor’s improper remarks during summation … . The cumulative effect of defense counsel’s errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13

 

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Hearing Required to Determine If Criminal Investigation of Defense Counsel Affected the Conduct of the Defense (Re: CPL 440.10 Motion to Vacate the Conviction)

The Court of Appeals determined defendant was entitled to a hearing on his motion to vacate his conviction.  Defendant’s attorney was the subject of a criminal investigation by the district attorney’s office during defendant’s trial.  The investigation of the attorney was not related to the charges against the defendant.  Therefore an automatic reversal was not required.  A hearing was necessary to determine if the conduct of the defense was affected by a conflict of interest (the district attorney’s investigation of defendant’s lawyer):

We reject defendant’s request to require automatic reversal anytime the defense attorney is under investigation or being prosecuted by the same district attorney’s office that is trying his client.  Indeed, in People v Konstantinides (14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client’s case.  An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here.  Accordingly, to obtain relief, defendant must demonstrate at a hearing on his 440.10 application that “the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” … .  People v Payton, 232, CtApp 12-12-13

 

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Parent Ordered to Pay Attorney’s Fees for Attorney Appointed to Represent the Children Has Standing to Raise Legal Malpractice Defense

In a full-fledged opinion by Justice Saxe, the First Department determined that father, who had been ordered to pay the attorney’s fees for the attorney appointed to represented the children, had standing to raise the defense of legal malpractice:

…[A] parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Venecia V v August V, 2013 NY Slip Op 08140, 1st Dept 12-5-13

 

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Surrogate’s Court Has Jurisdiction to Determine the Legal Fees Owed to Out-Of-State Counsel for Services to the Estate

In a full-fledged opinion by Justice Austin, the Second Department determined Surrogate’s Court erred when it held that Surrogate’s Court did not have jurisdiction to determine the legal fees due out-of-state counsel and Surrogate’s Court further erred when it ordered that the fees already paid to out-of-state counsel be returned.  The out-of-state firm (Choate Hall) represented the executor who, at the time the firm was hired, lived in Massachusetts (where the firm is located).  The opinion includes a detailed discussion of the jurisdiction of Surrogate’s Court, as well as the relevant statutory and case law (not summarized here):

…[W]e find that the Surrogate’s Court erred in concluding that it lacked subject matter jurisdiction to fix and determine the compensation owed to Choate Hall for services rendered to the estate. Further, the court should have made a determination as to the fair value of Choate Hall’s services, rather than direct that the entire fee be returned. Thereafter, the court should have directed only a refund of such fees paid to Choate Hall that it considered to have been paid in excess of what it determined to be the fair value of Choate Hall’s services to the estate pursuant to SCPA 2110.  Matter of Askin, 2013 NY Slip Op 07963, 2nd Dept 11-27-13

 

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The Prosecutor’s Summation Was Filled With Impermissible Statements and Suggestions, Requiring Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because of the prosecutor’s impermissible statements in summation. The prosecutor vouched for his witnesses, suggested that in order to believe the defendant the jury would have to believe there was a conspiracy to convict him, involving the trial judge, and effectively shifted the burden of proof to the defendant:

During the course of his summation, the prosecutor, among other things, repeatedly vouched for the credibility of the People’s witnesses (“He’s telling the truth”).  Such comments clearly are impermissible … .  We reach a similar conclusion regarding the prosecutor’s statement that if the jury was inclined to believe defendant, he had “a bridge in Brooklyn [to] sell” as well … .  These errors were compounded by the prosecutor’s completely speculative comment that “the only reason that [defendant] wasn’t involved in the other robbery that [Young] and [Ervin] committed” not long after the attack upon the victim “was because he couldn’t be there with them” – suggesting that had defendant not been in custody at the time that the subsequent robbery was committed, he would have participated in that crime as well.  Although the prosecutor’s comment in this regard undeniably was improper …, it paled in comparison to his statement that, in order to believe defendant’s version of events, the jury had to accept that there was a far-reaching conspiracy to convict defendant — one that included the trial judge.  Specifically, the prosecutor stated, “[H]ere’s what you’ll have to find to find that the defendant is not guilty.  This is what you have to believe.  You have to believe there was a conspiracy against [defendant,] that every single one of the witnesses that came in here went over there, put their hand on the Bible, swore to tell the truth, and then lied and made up a story, and that the detectives from the Albany Police Department . . . got together and risked their entire careers and got together with . . . Ervin and . . . Young to frame [defendant].  Then they got me involved to continue prosecuting the case, and then they got Judge Herrick and Judge Breslin to go along with these cooperation agreements and allowed them to come in here and lie.”

The problem with the foregoing statement is three-fold. First, the comment made by the prosecutor relative to what the jury would need to believe in order to find that defendant was not guilty arguably shifted the burden of proof from the People to defendant.  Additionally, the prosecutor’s reference to a conspiracy in no way constitutes fair comment upon the evidence adduced.  Although defendant indeed testified that Young and Ervin were not being truthful, he never suggested that the People’s witnesses, among others, were engaged in a conspiracy to wrongfully convict him, and there is nothing in the record to support such a claim.  Finally, there is no question that one of the jury’s key roles in a criminal trial is to assess the credibility of the witnesses who testify on behalf of the People and, in those instances where the defendant takes the stand or otherwise presents witnesses in support of his or her defense, to weigh the credibility of the People’s witnesses vis-a-vis the defendant’s witnesses.  Such a “credibility contest” is entirely permissible, and there is nothing inherently prejudicial about that evaluative process.  Here, however, the prosecutor’s commentary set up a far different credibility contest by suggesting to the jury that it could believe defendant only if it also believed that the trial judge, among others, had permitted the People’s witnesses to lie to the jury and/or otherwise engaged in some form of misconduct.  Simply put, the prosecutor’s conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel’s prompt objection and County Court’s appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored. People v Forbes, 104771, 3rd Dept 11-27-13

PROSECUTORIAL MISCONDUCT

 

 

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