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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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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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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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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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Action for Attorney Deceit Originated in New York Common Law, Not Statutory Law—Six-Year “Catch All” Statute of Limitations Applies

The Court of Appeals, in a full-fledged opinion Judge Read, determined that an action for attorney deceit (Judiciary Law 487) was governed by the six-year “catch-all” statute of limitations (CPLR 213(1)), not the three-year statute (CPLR 214(2)). The question came down to whether the attorney-deceit action stemmed from a statute or from the common law. The Court noted that the statutory law of England was incorporated into New York’s common law before the first New York statute dealing with attorney deceit was was enacted.  Therefore the “catch-all” six-year statute applied:

A cause of action for attorney deceit … existed as part of New York’s common law before the first New York statute governing attorney deceit was enacted in 1787 … . The 1787 statute enhanced the penalties for attorney deceit by adding an award for treble damages, but did not create the cause of action … .Thus, even if a claim for attorney deceit originated in the first Statute of Westminster rather than preexisting English common law …, liability for attorney deceit existed at New York common law prior to 1787. As a result, claims for attorney deceit are subject to the six-year statute of limitations in CPLR 213 (1). Melcher v Greenberg Traurig LLP, 2014 NY Slip Op 02213, CtApp 4-1-14

 

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Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel

Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” … .  People v Daniels, 360, 4th Dept 3-28-14

 

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense Counsel’s Failure to Move to Suppress Statements, to Challenge Search Warrants, to Request Discovery and to Object to the Conduct of the Prosecutor Raised Questions of Effective Assistance

The Court of Appeals determined questions about the effectiveness of defense counsel warranted a hearing on defendant's motion to vacate his conviction.  The court found defense counsel's explanation for failing to move to suppress defendant's statements (he was interrogated for 26 hours), failure to challenge search warrants, failure to make certain discovery requests and failure to object to the conduct of the prosecutor, inadequate:

[Defense counsel's] affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant's request for legal assistance was deemed “too late.” Nor did [defense counsel] provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. [Defense counsel] also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether [defense counsel]  had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation … . People v Zeh, 33, CtApp 3-27-14

 

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