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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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Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:

Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a “post-judgment order” (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment “is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15][emphasis added]), “post-judgment” can only mean after entry.

Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13

 

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Court Should Have Instructed Jury on Plaintiff’s Comparative Fault in this Legal Malpractice Action

The Third Department determined Supreme Court should have charged the jury on comparative fault in a legal malpractice action.  The client’s first priority security interest in equipment and vehicles had not been protected. The client alleged the attorney’s failure to file a UCC-1 and DMV liens constituted malpractice. With respect to the requested comparative-fault jury instruction, the Third Department explained:

 We agree with defendants’ contention that Supreme Court erred in refusing to charge the jury regarding plaintiff’s comparative fault.  The culpable conduct of a plaintiff client may be asserted as an affirmative defense in a legal malpractice action in mitigation of damages (see CPLR 1411, 1412…).  Here, the evidence was sufficient to support a finding that plaintiff could reasonably have been expected to understand the underlying obligations and formalities… .  Hattem v Smith, 516183, 3rd Dept 11-21-13

 

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ARTICLE 10 PROCEEDINGS ARE CIVIL IN NATURE, HOWEVER THE COURT ANALYZED WHETHER RESPONDENT COULD REPRESENT HIMSELF AND WHETHER HE WAS AFFORDED EFFECTIVE ASSISTANCE USING THE CRIMINAL LAW STANDARDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that Article 10 sex-offender commitment proceedings are civil in nature, but analyzed respondent’s request to represent himself and whether respondent received ineffective assistance under the criminal-law standards:

Supreme Court did not err in denying respondent’s request to proceed pro se. Assuming, without deciding, that a respondent in a Mental Hygiene Law article 10 proceeding has the same right of self-representation as a criminal defendant …, respondent’s request here was denied based on his failure to meet two prongs of the three-prong test:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .

Respondent made his request to proceed pro se only two business days before the second trial was scheduled to begin, which the court properly found untimely … . …The court properly denied his request based on … comments indicating that he would attempt to disrupt or prevent the orderly conduct of the trial …, along with the untimeliness of the request. …

Respondent was not deprived of the effective assistance of counsel. Initially, we hold that while Mental Hygiene Law article 10 proceedings are civil rather than criminal, and that ineffective assistance of counsel may only be considered in civil litigation if extraordinary circumstances are present, the indefinite and involuntary nature of confinement that may result in this type of proceeding constitutes such an extraordinary circumstance … .

Applying the criminal standard, we must determine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … . Matter of State of New York v Timothy BB., 2013 NY Slip Op 07774 [113 AD3d 18], Third Dept 11-21-13

 

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