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Failure to Exercise Peremptory Challenge Not Ineffective Assistance

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the failure to exercise a peremptory challenge against a juror (Peters) who was a long-time friend of the prosecuting attorney did not amount to ineffective assistance of counsel:

…[D]efendant can prevail on his ineffective assistance claim only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right (see People v Turner, 5 NY3d 476, 478 [2005]).  We held in Turner that this had occurred where a lawyer overlooked “a defense as clear-cut and completely dispositive as a statute of limitations” (id. at 481).  The mistake that defendant accuses defense counsel of making here was not of that magnitude.

It could be argued that counsel’s decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution’s favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge.  We consider those arguments separately.

The first argument is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view.  * * *

The second argument — that counsel erred by failing to preserve the issue of the for-cause challenge for appeal — gives us somewhat more pause.  The trial court’s decision to deny the challenge for cause may have been error … .  Counsel’s choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause “does not constitute reversible error unless the defendant . . . peremptorily challenges such prospective juror.” Considering the poor odds of acquittal that defendant was facing, it is hard to see how keeping a particular juror — no matter how strong defense counsel’s hunch that he would be favorable -could justify the loss of a significant appellate argument.

We conclude, however, that counsel’s mistake, if it was one, was not the sort of “egregious and prejudicial” error that amounts to a deprivation of the constitutional right to counsel… . People v Thompson, 144, CtApp 10-10-13

 

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Ineffective Electronic Filing Can Be Corrected Pursuant to CPLR 2001 After Statute of Limitations Expired

In a full-fledged opinion by Justice Dillon, the Second Department reversed Supreme Court’s denial of plaintiff’s motion, pursuant to CPLR 2001, to allow the filing and serving of a summons and complaint after the statute of limitations had expired. Plaintiff had timely attempted to file the summons and complaint using a new electronic filing system in Westchester County. It turned out that plaintiff’s counsel had mistakenly used a “practice” filing system designed to familiarize users with electronic filing and the summons and complaint was never actually filed in time.  The Second Department determined plaintiff’s motion to be allowed to cure the mistake under CPLR 2001 should have been granted after explaining that, in this case, CPLR 2001 should be to correct an error without concern for whether the defendant would be prejudiced by the correction:

The defendant argues that the plaintiff’s e-filing error cannot be corrected, as doing so would prejudice the defendant by depriving her of a viable statute of limitations defense. However, we conclude that under a proper reading of CPLR 2001, the issue of prejudice to the defendant need not be reached.

More specifically, we believe that many reported cases in New York reflect a misreading of the language of CPLR 2001. Judicial discretion and the absence of prejudice are not requirements that must be applied in a combined fashion. Rather, a close reading of the statute reveals that CPLR 2001 recognizes two separate forms of potential relief to address mistakes, omissions, defects, or irregularities in the filing of papers. The statute distinguishes between the “correction” of mistakes and the “disregarding” of mistakes, and each invokes a different test. Courts may “correct[ ]” mistakes “upon such terms as may be just” (CPLR 2001). The statute then says, set off by an “or,” that mistakes may be “disregarded” if a substantial right of a party is not prejudiced … . Thus, a “correction” of a mistake appears to be subject to a broader degree of judicial discretion without necessary regard to prejudice, whereas a complete “disregarding” of a mistake must not prejudice an opposing party. … The distinction between simply correcting a mistake and overlooking a mistake makes sense, as a party seeking to wholly disregard a filing mistake may understandably be expected to bear a higher burden than a party seeking a mere correction.

A secondary inquiry, therefore, is whether the plaintiff’s request for a nunc pro tunc recognition of his filing in the NYSCEF “practice” system amounts to a mere correction that may be permitted upon terms that may be just, or whether it constitutes a full-scale disregard of the filing error that, in order to be permitted, requires a showing that the defendant will not be prejudiced by the disregard.

… [Here] [t]he “filing” was performed in a mistaken manner and method, which courts are permitted to correct on terms that may be just … . Therefore, the plaintiff was under no burden to demonstrate an absence of prejudice to the defendant. In contrast, excusing a clearly untimely filing would constitute the disregarding of an error, which could not be permitted because it would be prejudicial to a defendant to deprive it of a legitimate statute of limitations defense. Grskovic v Holmes, 2013 NY Slip Op 06545, 2nd Dept 10-9-13

 

Charging Lien on Settlement Award Allowed—Attorney Withdrew By Mutual Consent

In affirming the validity a charging lien on a settlement award on behalf of an attorney who had withdrawn from the case upon mutual consent the Second Department wrote:

“Pursuant to Judiciary Law § 475, [w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order or settlement in the client’s favor'” … . ” Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien'” … . Here, the plaintiff established, prima facie, that his representation … was terminated upon mutual consent, and that there had been no misconduct, discharge for cause, or unjustified abandonment on his part. Tangredi v Warsop, 2013 NY Slip Op 06559, 2nd Dept 10-9-13

 

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Indictment Should Not Have Been Dismissed Based on Prosecutorial Misconduct

In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained:

“ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” … .  As the Court of Appeals has stated, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .

Here, the prosecutor was required to establish that the four-year-old victim could provide unsworn testimony, but failed to do so… . The prosecutor also violated the unsworn witness rule during an attempt to persuade the child to testify about the incident … .  Nevertheless, we conclude that the prosecutor did not thereby engage in conduct that was fraudulent in nature, nor was the prosecutor’s conduct so egregious as to impair the integrity of the grand jury proceedings … .  We further conclude that the remaining evidence is legally sufficient to sustain the indictment.  People v Elioff, 1002, 4th Dept 10-4-13

 

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Trial Judge Should Have Allowed Slightly Late Peremptory Challenge—Conviction Reversed

The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge.  Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake:

After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory challenges to the first group of prospective jurors in the panel.  The prosecutor exercised several challenges, followed by defense counsel.  As the court began to indicate the number of challenges that remained for each side, defense counsel immediately asked if he could exercise a peremptory challenge to the prospective juror in question on appeal.  When the court said no, defense counsel indicated that he had “crossed [the prospective juror’s name] out by mistake.”  The court reiterated that it would not permit the challenge, indicating that it had warned the attorneys about adhering to the court’s procedures.

“Under these circumstances, ‘we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [his] challenge,’ ” and we thus conclude that the court’s refusal to permit the challenge was an abuse of discretion … .  Inasmuch as “the right to exercise a peremptory challenge against a specific prospective juror is a ‘substantial right’ . . . , reversal is mandated” … . People v Rosario-Boria, 1007, 4th Dept 10-4-13

 

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Failure to Make Motion for Trial Order of Dismissal Not Ineffective Assistance

In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:

…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13

 

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ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court’s sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court’s determination to deny the child’s motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child’s interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary … . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

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Ineffective Assistance of Counsel Mandated New Trial—Difference Between Federal and State Ineffectiveness Criteria Explained

In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:

A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered “somewhat more favorable to defendants,” focusing on “the fairness of the process as a whole rather than its particular impact on the outcome of the case” …. “[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation” …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a “but for” test …, under the state standard, “a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation” …. “To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel’s errors” … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel’s performance at trial … .

Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied “meaningful representation” by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13

 

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Canadian Attorney Practicing in New York Properly Convicted of Unlicensed Practice of Law

The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice in New York. The complainants testified they did not receive the services they paid for and were not refunded their money.  The defendant was charged with grand larceny, scheme to defraud and unlicensed practice of law.  The First Department determined there was sufficient evidence to support the convictions even though there was no evidence defendant explicitly represented she was licensed to practice law in New York.  Several unique issues were discussed including: the Attorney General’s (AG’s) loss of documentary evidence (advertisements and retainer agreements) so the appellate court was unable to review them; the Attorney General’s jurisdiction over the criminal prosecution under Executive Law 63; the power of the Division of State Police to request that the Attorney General prosecute the case; the law of the case with respect to the First Department’s reversal of defendant’s conviction after her first trial and its refusal to dismiss the indictment; and the trial court’s refusal to substitute counsel for the defendant and giving defendant the choice to proceed pro se (which she did).  In discussing the sufficiency of the evidence, the First Department wrote:

Viewing the evidence in the light most favorable to the AG, as we must …, we find that the evidence was sufficient to convict defendant. It was not unreasonable for the jury to have concluded that by promoting herself in an advertisement as being a lawyer specializing in immigration, and having an office in New York, defendant intended to signal that she was licensed to practice in New York. That some of the lawyers working in the office were admitted in New York is of little moment, since defendant traded almost exclusively on her own reputation and expertise in seeking to attract clientele. Further, the fact that defendant’s advertisements made clear that she was admitted to practice in Canada did not preclude the possibility that a client would reasonably believe that she was also admitted in New York, but found it unnecessary to publicize that fact based on her location in Manhattan.

It was also not irrational for the jury to conclude that defendant had an economic motive for concealing her lack of a New York license, despite the fact that such a license was not necessary to process her clients’ immigration applications. Aside from the cachet that prospective clients would have attributed to having a lawyer who was a member of the New York bar, the jury could have concluded that CPI’s clients valued the fact that the attorney they retained was subject to the jurisdiction of local disciplinary authorities if they were unsatisfied with defendant’s work (as many of them were). Indeed, it is clear that CPI’s clients placed a large premium on defendant’s bar status, given that each of them testified that they would not have retained the firm had they known that defendant was not admitted to practice in New York. People v Codina, 2013 NY Slip Op 06291, 1st Dept 10-1-13

 

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Criteria for Allowing Defendant to Proceed Pro Se Explained

In upholding the trial judge’s allowing defendant to proceed pro se, the Fourth Department explained the relevant criteria:

“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” … .  “If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary”… . * * *

Before granting defendant’s request to proceed pro se, the court conducted the requisite searching inquiry, during which defendant stated, inter alia, that he had successfully represented himself at trial in a prior case.  From his initial appearance to his mid-trial request to proceed pro se, defendant expressed dissatisfaction with his assigned attorneys, against whom he had filed multiple complaints with the Attorney Grievance Committee, and he engaged in concerted efforts to assist in his defense.  The court “had numerous opportunities to see and hear . . . defendant firsthand, and, thus, had general knowledge of defendant’s age, literacy and familiarity with the criminal justice system” … .  In addition, the court fulfilled its obligation to ensure that defendant was “aware of the dangers and disadvantages of self-representation” … .  People v Chandler, 985, 4th Dept 9-27-13

 

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