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Surrogate’s Court Could Not Award Attorney’s Fees for Services Provided to Decedent’s Legatee (as Opposed to Services which Benefitted the Estate)

The Second Department upheld Surrogate’s Court’s ruling that it did not have jurisdiction to award attorney’s fees for the attorney’s (Klein’s) handling of Mental Hygiene Law article 81 proceeding to have decedent’s legatee (Theodore) declared an incapacitated person:

“The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” … . Although the Surrogate’s Court Procedure Act authorizes the court to fix and determine attorney’s fees for services rendered to a beneficiary of an estate (see SCPA 2110[1]), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” … . Contrary to Theodore’s contention, “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” … . However,”the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by [an attorney] benefitted the estate, and which benefitted only the individual interests of [a party]” … . Since the record supports the Surrogate’s determination that the services performed by Klein benefitted Theodore personally rather than the decedent’s estate, the court, in effect, upon reargument, properly adhered to its determination that it lacked jurisdiction to set Klein’s fee… . Matter of Tarlow, 2013 NY Slip Op 07491, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Representation by Counsel on Unrelated Matter Recently Concluded by Conviction Did Not Preclude Defendant from Validly Waiving Right to Counsel

The Fourth Department noted that the representation of defendant by counsel in an unrelated matter which had just been disposed of by conviction did not prevent defendant from validly waiving his right to counsel when interviewed by the police about the instant charge:

“Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” … .  However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” … .  Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes … .  We reject defendant’s contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal … . People v Koonce, 1031, 4th Dept 11-8-13

 

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Prosecutorial Misconduct Noted (Conviction Upheld However)

In affirming defendant’s conviction, the Fourth Department noted its agreement with defendant’s assertions of prosecutorial misconduct:

We agree with defendant that it was improper for the prosecutor to remark that a witness was afraid of defendant inasmuch as that was not a fair comment on the evidence … .  We further agree with defendant that the prosecutor improperly used defendants past crimes of violence to suggest that the witness had “a reason to be afraid.”  It is fundamental that the function of crossexamining a defendant about his or her prior criminal, vicious, or immoral acts “is solely to impeach [the defendant’s] credibility as a witness” … .  Nevertheless, we conclude that the prosecutor’s isolated remarks were not so egregious as to deprive defendant of a fair trial …, particularly considering that this was a bench trial… .  People v King, 1135, 4th Dept 11-8-13

 

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References to Counsel Did Not Constitute an Unequivocal Request for Counsel

The Fourth Department determined defendant’s references to an attorney did not amount to an unequivocal request for counsel such that questioning should cease:

The right to counsel attaches, inter alia, “when a person in custody requests to speak to an attorney or when an attorney who is retained to represent the suspect enters the matter under investigation” … .  Here, defendant did not ask to speak to an attorney at any point during the police interrogation.  Defendant’s statements to the effect that he had an attorney and his questions whether he should have an attorney present were not an unequivocal invocation of the right to counsel … .  Further, defendant failed to “present[] evidence establishing that he was in fact represented by counsel at the time of interrogation, as defendant contended” … .  Although defendant indicated that he had a lawyer in connection with his marital separation, we conclude that the lawyer “was not retained ‘in the matter at issue’ ” … .  Contrary to the further contention of defendant, “the record of the suppression hearing supports the court’s determination that the statements at issue were not rendered involuntary by reason of any alleged coercion by the police” … . People v Henry, 1096, 4th Dept 11-8-13

 

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Defense Counsel’s Statement Defendant “Most Likely” Would Not Be Deported Based on a Guilty Plea Did Not Amount to Ineffective Assistance

The Third Department determined that defense counsel’s statement that the defendant “most likely” would not be deported based on his guilty plea to a misdemeanor did not constitute ineffective assistance. Defendant had subsequently been detained by immigration officials for deportation:

…[D]efendant was required to establish both ‘that counsel’s performance was deficient’ and ‘that the deficient performance prejudiced the defense'” … .  Here, the record indeed makes clear that defendant was concerned about the possibility of being deported.  The record does not, however, establish that defendant was given erroneous advice regarding the potential immigration consequences associated with his guilty plea. People v Obeya, 105313, 3rd Dept 10-31-13

 

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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late:

Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every “attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer” (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney’s right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … .

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel’s law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-30-13

 

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Invocation of Right to Counsel When Not in Custody Can Be Withdrawn Without Attorney Present

The Third Department determined defendant’s invocation of his right to counsel when he was not in custody (on September 4, 2004) could be withdrawn without an attorney present and did not, therefore, require the suppression of subsequent statements made three weeks later:

The right to counsel indelibly attaches in two limited situations – where formal judicial proceedings against a defendant have commenced and where an uncharged defendant, who is in custody, has retained or requested an attorney … .  However, “[a] suspect who is not in custody when he or she invokes the right to counsel can withdraw the request and be questioned by the police” … .  As defendant was not in custody at the time he invoked his right to counsel on September 4, 2009, he was free to withdraw that request or waive such right and speak with the police without having an attorney present – particularly in view of the approximately three weeks that elapsed between his initial request for an attorney and his subsequent statements to law enforcement … . People v Cade, 103443, 3rd Dept 10-24-13

 

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Effect of Witness’ Invocation of Fifth Amendment Privilege on Fairness Explained

The Second Department explained when a witness’ asserting the privilege against self-incrimination constitutes reversible error and noted that the introduction of a photograph of the murder victim when he was alive was (harmless) error:

“[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . “Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness’s refusal to testify adds critical weight to the People’s case in a form not subject to cross-examination, reversal is not warranted” … . Under the circumstances presented here, invocation of the Fifth Amendment privilege against self-incrimination by a prosecution witness did not add critical weight to the prosecution’s case, and the defendant was not deprived of his right to a fair trial by that testimony… .  People v Berry, 2013 NY Slip Op 06872, 2nd Dept 10-23-13

 

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Ineffective Assistance On Suppression Issues—Case Sent Back

The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing.  The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:

In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police.  At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.

And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant.  Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this prosecution.  People v Clermont, 166, CtApp 10-22-13

 

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