Attorneys – Page 137 – New York Appellate Digest

Relationship of Prenuptial Agreement to Temporary Maintenance and Award of Attorneys Fees

The Second Department determined that temporary maintenance was not properly granted in light of the facts (where the prenuptial agreement did not expressly deal with the topic) and legal fees in excess of the limit in the prenuptial agreement were properly granted. The court explained the relevant analyses as follows:

“As with all contracts, prenuptial agreements are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing” …. “Where a prenuptial agreement is clear and unambiguous on its face, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties’ reasonable expectations are met” … .

Contrary to the plaintiff’s contention, the parties’ prenuptial agreement did not expressly preclude an award of temporary maintenance pendente lite, nor did the defendant expressly waive such an award under the terms of the agreement… . On the record presented, including evidence of the defendant’s expenses, the defendant’s reasonable needs were more than adequately met. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the plaintiff to pay temporary maintenance in the sum of $1,000 per month… . * * *

Supreme Court properly awarded the defendant interim counsel fees, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the plaintiff’s obligation to pay such fees incurred by the defendant in any divorce action. Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field …, the determination of whether to enforce an agreement waiving the right of either spouse to seek an award of an attorney’s fee is to be made “on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced” … . Here, the parties are involved in extensive litigation concerning child custody, a matter not expressly addressed in their prenuptial agreement. Moreover, the plaintiff’s net worth is more than $13 million and his monthly gross income exceeds $45,000, while the defendant has no income other than what she is receiving pursuant to the agreement. Abramson v Gavares, 2013 NY Slip Op 05861, 2nd Dept 9-18-13

September 18, 2013

Attorneys, Civil Procedure, Negligence

In Personal Injury Case, Court Should Not Have Granted Mistrial When Objection Sustained, Lawyer Admonished and Curative Instruction Given

The Second Department reversed Supreme Court’s grant of a mistrial in a slip and fall case. Plaintiff was injured playing basketball. Plaintiff objected to remarks made by defense counsel in summation which erroneously implied that the doctrine of primary assumption of risk applied. The trial judge sustained the objection, admonished the lawyer, and gave a curative instruction. After the verdict for the defendant, Supreme Court granted plaintiff’s motion for a mistrial:

The Supreme Court erred in, in effect, granting the plaintiffs’ application for a mistrial since the court had previously properly sustained objections to the subject summation comments, openly admonished counsel, and provided curative instructions, thereby correcting any possible prejudice resulting from the subject summation comments … . Richardson v City of New York, 2013 NY slip Op 05810, 2nd Dept 9-11-13

September 11, 2013

Attorneys, Election Law

County Law Setting Term Limits for District Attorney Preempted by State Law

The Court of Appeals affirmed the Appellate Division’s ruling that the county law limiting the terms of the district attorney is preempted by state law:

The office of district attorney is plainly subject to comprehensive regulation by state law, leaving the counties without authority to legislate in that respect. In this light, we view the limitation on the length of time a district attorney can hold office to be an improper imposition of an additional qualification for the position … .

Permitting county legislators to impose term limits on the office of district attorney would have the potential to impair the independence of that office because it would empower a local legislative body to effectively end the tenure of an incumbent district attorney whose investigatory or prosecutorial actions were unpopular or contrary to the interests of county legislators. The state has a fundamental and overriding interest in ensuring the integrity and independence of the office of district attorney. Matter of Hoerger v Spota, 237, CtApp 8-22-13

August 22, 2013

Attorneys, Privilege

Counsel Should Have Been Disqualified Based On Conflict of Interest—Criteria Explained

In reversing Supreme Court and determining that counsel representing the town must be disqualified for a conflict of interest, the Second Department explained the operative principles:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: “(1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” … . “A party’s entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” … . * * *

There is a rebuttable presumption that “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . That presumption may be rebutted by proof that “any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation” … . Proof must also be presented that the law firm properly screened the disqualified lawyer from dissemination and receipt of information subject to the attorney-client privilege … . Matter of Town of Oyster Bay v 55 Motor Ave Co LLC, 2013 NY Slip Op 05636, 2nd Dept 8-14-13

August 14, 2013

Attorneys, Criminal Law

Burden Upon Police to Determine Whether Defendant Represented by Counsel Explained

In affirming the denial of a motion to vacate a conviction after a hearing (over a substantial dissent), the Third Department explained the burden upon the police to determine whether a defendant is represented by counsel before questioning him. In this case the question was whether defendant’s attorney, who represented defendant in a robbery case resolved by a cooperation agreement and who initially was involved a homicide case in 2003, was still representing the defendant in the homicide case when the defendant was questioned about it in 2006:

Although [defendant’s attorney] clearly participated in the homicide investigation in 2003 and the police were well aware that he had entered into it as defendant’s counsel, the parties agree that there was a genuine lack of clarity …surrounding the question of whether that representation was limited to the cooperation agreement and had terminated once defendant was sentenced in the robbery case.

It is well settled that where, as here, there is any ambiguity as to whether the defendant is represented by counsel, the burden rests squarely on the police to resolve that ambiguity prior to questioning … . Here, before questioning defendant in 2006, [the police] met with [defendant’s attorney], who told them unequivocally that he no longer represented defendant. Inasmuch as the police fulfilled their obligation to resolve the ambiguity by determining that [the attorney’s] representation of defendant had terminated prior to questioning him, County Court did not err in concluding that defendant’s right to counsel had not been violated … . People v McLean, 104691, 3rd Dept, 8-8-13

August 8, 2013

Attorneys, Civil Procedure, Election Law

Criteria for Prohibition Explained

In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained:

” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law'” (Matter of Soares v Herrick, 20 NY3d 139, 145, quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51). Rather, “the extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction” … . Even where prohibition is an available remedy, it ” is not mandatory, but may issue in the sound discretion of the court'” … . ” In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'” … .

Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice … . However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating “suspicious circumstances” with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature … . Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie. Matter of Working Families Party v Fisher, 2013 NY slip Op 05578, 2nd Dept 8-7-13

August 7, 2013

Attorneys, Criminal Law

Exclusion of Defense Counsel’s Colleague from a Wade Hearing Deprived Defendant of His Right to a Public Trial

The First Department, in a full-fledged opinion by Justice Richter, reversed a conviction finding the defendant was denied his right to a public trial. To protect the undercover officer and others, the defendant was excluded from the Wade hearing concerning the validity of the undercover officer’s identification of the defendant. The trial court, in ordering partial closure of the courtroom, had allowed defense counsel, and colleagues of defense counsel, to be present during the hearing. During the hearing, defense counsel’s officemate was denied entry to the courtroom by the court officer stationed at the door, who had consulted with the sergeant inside the courtroom. The First Department determined the exclusion of the defendant from the hearing was proper, but the exclusion of the attorney required reversal. The court wrote:

Here, the undercover was the critical witness, and excluding defense counsel’s colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial … . * * *

…[T]he exclusion of defense counsel’s colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored “is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions” …. Excluding defense counsel’s experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover’s testimony, and enabled the People to present the undercover’s testimony without the salutary effects of extra scrutiny. People v Moise, 2013 NY Slip Op 05550, 1st Dept, 8-6-13

August 6, 2013

Attorneys, Family Law

Income of Mother’s Cohabiting Fiance Should Not Have Been Considered in Determining Mother’s Entitlement to Assigned Counsel

In finding mother was deprived of her right to counsel in a guardianship proceeding, the Second Department determined the income of mother’s cohabiting fiance should not have been considered:

…[T]he Family Court erred in considering the income of the mother’s cohabiting fiancé in making a determination as to whether she was needy and, therefore, entitled to appointment of counsel …. Furthermore, nothing in the record supports a finding that the mother waived her right to counsel … . Thus, the mother was deprived of her right to counsel (see Family Ct Act § 262[a][v]…). Matter of Angel L, 2013 NY Slip Op 05528, 2nd Dept 7-31-13

July 31, 2013

Attorneys, Criminal Law, Immigration Law

Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution

The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution:

In People v Pepper (53 NY2d 213, cert denied sub nom. New York v Utter, 454 US 1162), the Court of Appeals addressed the issue of whether a new rule should be retroactively applied under the New York Constitution. It recognized three factors a court should weigh to determine whether to retroactively apply a new rule: (1) the purpose to be served by the new standard, (2) the extent to which law enforcement authorities relied upon the old standard, and (3) the effect a retroactive application of the new standard would have on the administration of justice (see id. at 220). The Court of Appeals explained that “the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself” (id.). Thus, a new rule that goes “to the heart of a reliable determination of guilt or innocence” will be retroactively applied “where otherwise there could be a complete miscarriage of justice” (id. at 221). However, a new rule which is “only collateral to or relatively far removed from the fact-finding process at trial” (id.), will have only prospective application. Although the Supreme Court in Padilla held that the Sixth Amendment requires criminal defense counsel to inform their clients whether a guilty plea carries a risk of deportation, this new rule, rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution … .

Retroactive application of Padilla is also not warranted under the second and third Pepper factors. With regard to law enforcement reliance, prior to Padilla, a defendant could prevail on an ineffective-assistance-of-counsel claim only if it was established that counsel rendered incorrect advice regarding the immigration consequences of the guilty plea and that the defendant was prejudiced thereby … . The failure to advise a defendant of the possibility of deportation did not constitute ineffective assistance of counsel …, and such failure to advise did not “affect the voluntariness of a plea of guilty or the validity of a conviction” (CPL 220.50[7]). Thus, under the old standard, prosecutors could recommend acceptance of plea allocutions even where the defendant had not been advised of the immigration consequences of entering into the plea …. As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard …, thus adversely affecting the criminal justice system. Accordingly, we further find that under New York law, the Padilla rule should not be retroactively applied to cases like this one where the convictions became final prior to March 31, 2010, the date Padilla was decided. People v Andrews, 2013 NY Slip Op 05469, 2nd Dept 7-24-13

July 24, 2013

Attorneys, Judges, Municipal Law

Judges Not Obligated to Adhere to Pay-Voucher Recommendations Made by Assigned Counsel Program

The Fourth Department dismissed an Article 78 petition brought by the Onondaga County Bar Association Assigned Counsel Program (ACP) which sought to vacate the respondents-judges’ approval of pay vouchers submitted by respondent-attorney. The Fourth Department wrote:

…[T]his proceeding challenges the authority of respondents to approve vouchers that do not comply with the ACP Plan; it does not challenge the amount of the compensation awarded, a matter reviewable only before an administrative judge …. We reject petitioners’ contention that respondents have a mandatory duty to follow the ACP Plan and that their failure to refuse to pay vouchers not in compliance with the Plan is arbitrary and capricious. Although ACP personnel may make recommendations to the trial court with respect to the payment of vouchers, the trial courts are not obligated to adhere to those recommendations. “The ACP Plan does not take away from the courts the ultimate authority to determine assigned counsel’s compensation; it merely provides for a preliminary review and recommendation, which individual trial judges are free to accept or reject”… . Matter of County of Onondaga and Onondaga County Bar Association Assigned Counsel Program, Inc., 57, 4th Dept 7-19-13

July 19, 2013