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No Prejudice from Loss of Hand-Written Police Report (Rosario Material)/Trial Judge Did Not Abuse Discretion In Denying Request for Adverse Inference Jury Charge

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the trial judge did not abuse his discretion by failing to give the adverse inference charge with respect to a hand-written police report (“scratch 61”) which could not be located. The opinion explains the history of the sanctions appropriate when Rosario material is not turned over to the defense. With respect to nonwillful loss or destruction of Rosario material, the court explained the defendant must demonstrate prejudice, not demonstrated under the facts here:

…[O]ur rule is clear: nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice … . If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault … . The focus, though, is on the need to eliminate prejudice to the defendant … . Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. … The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction. Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61, as the defense attorneys and the judge all no doubt knew. A scratch 61 is a handwritten complaint report that [was] placed in a bin for typing, likely by a civilian employee of the police department. Defendants were provided the typewritten complaint report, which would have differed from the scratch 61 only if the typist made a mistake — i.e., the handwritten scratch 61 is not subject to editing before typing. People v Martinez…, 13, 14, CtApp 2-18-14

 

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No Constitutional Right to a Sua Sponte Inquiry Into Defendant’s Mental Health Before Allowing Defendant to Proceed Pro Se

In a full-fledged opinion by Judge Graffeo, the Court of Appeals acknowledged that a defendant may be competent to stand trial but not competent to proceed pro se, but determined the trial court did not violate defendant’s constitutional rights by not conducting a sua sponte inquiry into his mental health when he asked proceed pro se:

Defendant submits that [Indiana v Edwards (554 US 164 [2008])] requires states to adopt a two-tiered competency standard — a baseline for competency to stand trial and a separate, heightened standard for competency to proceed pro se at trial — and compels a competency hearing before a defendant may be permitted to proceed pro se. But we do not view Edwards as imposing such a requirement — and our interpretation is in accord with the federal appellate courts that have addressed the issue … . Although a court has discretion to require representation by counsel in certain circumstances despite a request to proceed pro se, it does not follow that the Constitution is offended if that discretion is not exercised. People v Stone, 5, CtApp 2-13-14

 

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Counsel’s Failure to Object to References to Defendant’s Nickname Constituted Ineffective Assistance/Court’s Dismissal of an Entire Jury Panel Was Reversible Error

The Fourth Department reversed defendant’s conviction finding defense counsel ineffective for failure to object to the repeated references (by witnesses and the prosecutor) to the defendant’s nickname “killer.”  In addition, the Fourth Department determined the trial judge committed reversible error when he dismissed an entire jury panel:

Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (…see CPL 270.05 [2]).  By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law § 500…). People v Collier, 8, 4th Dept 2-7-14

 

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:

Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14

 

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Defense Counsel’s Failure to Move for Suppression Constituted Ineffective Assistance

The Fourth Department determined that the failure of defense counsel to make a suppression argument constituted ineffective assistance of counsel:

The facts of this case are similar to those in People v Clermont (22 NY3d 931), where the Court of Appeals held that the defendant was deprived of effective assistance of counsel at his suppression hearing.  The Court reasoned that defense counsel’s failure to marshal the facts adduced at the hearing, “coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  * * *

Here, as in Clermont, suppression was the only viable defense strategy.  Nevertheless, defense counsel inexplicably failed to move for suppression of the cocaine or the knife seized by the police from defendant’s vehicle.  Defense counsel also failed to move for suppression of defendant’s incriminating statement to the officer about the knife, which the court thereafter suppressed in response to defendant’s pro se motion.  Like the attorney in Clermont, defense counsel did not marshal the facts for the court, made no legal argument regarding suppression, and submitted no post-hearing memorandum.  In short, as in Clermont, defense counsel “never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  People v Layou, 1309, 4th Dept 2-7-14

 

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Verdict Properly Set Aside Based Upon Trial Court’s Own Denial of Defendant’s Request for an Adjournment to Retain New Counsel/Criteria for Trial Court’s Setting Aside a Verdict Explained

The Fourth Department, after explaining the criteria for setting aside a verdict, ruled the trial court had properly set aside the verdict in this case due to the trial court’s own erroneous denial of defendant’s request for an adjournment to seek new counsel:

“Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on ‘[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court’ ” … . “The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact . . . , to reverse or modify a judgment when the verdict is against the weight of the evidence . . . , and to reverse ‘[a]s a matter of discretion in the interest of justice’ ”… . * * *

In our view, the court’s refusal to grant defendant’s request for an adjournment was “an abuse of discretion as a matter of law” and effectively denied defendant the fundamental right to be represented by counsel of his own choosing …   On the date scheduled for suppression hearings, defense counsel, who had been retained by defendant’s family while defendant was incarcerated, withdrew defendant’s requests for suppression and sought an expedited trial without defendant’s knowledge or consent.  At the next court appearance, defendant requested an adjournment of the expedited trial to afford him time in which to retain another attorney.  The court, in denying that request, did not afford defendant “[a] reasonable time and a fair opportunity to secure counsel of his own choice”…, particularly in view of the fact that the trial was expedited without defendant’s knowledge or consent… .  Inasmuch as we conclude that defendant was denied the fundamental right to be represented by counsel of his own choosing, reversal of the judgment of conviction on that ground would be required as a matter of law upon an appeal therefrom (see CPL 330.30 [1]), and the court therefore properly set aside the verdict. People v Rohadfox, 1367, 4th Dept 2-7-14

 

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Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out

In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:

That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff’s cause of action not merely possible—or even probable—but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14

 

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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Answer Submitted Pro Se by Corporation Is a Nullity

The Second Department noted that a corporation must be represented by counsel and an answer submitted by a corporation pro se was a nullity:

…[T]he Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff’s motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se (see CPLR 321[a]…). Boente v Peter C Kurth Off of Architecture & Planning PC, 2014 NY Slip Op 00473, 2nd Dept 1-29-14

 

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