You are here: / Attorneys
,

Family Court committed reversible error by depriving father of his right to self-representation

In determining Family Court committed reversible error by depriving father of his right to self-representation, the Second Department wrote:

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had a right to be represented by counsel (see Family Ct Act § 262[a][iii];…). A party, however, may waive the right to counsel and opt for self-representation… .. Before permitting a party to proceed pro se, the court must determine that the party’s decision to do so is made knowingly, intelligently, and voluntarily …, by conducting a “searching inquiry” of that party…. Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, “forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]” … .  Matter of Massey v Van Wyen, 2013 NY Slip Op 05078, 2nd Dept 7-3-13

 

, , ,

Only Attorney Can Represent Voluntary Association—Appeals Dismissed

In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association

Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and a voluntary association may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (see CPLR 321[a]). Accordingly, petitioner’s failure to appear by attorney requires dismissal of the appeals… .  Matter of Tenants Comm of 36 Gramercy Park v NYS Div of Hous & Community Renewal, 2013 NY Slip Op 04984, 1st Dept 7-2-13

 

,

Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13

 

, ,

Supreme Court Case Relied Upon to Vacate Convictions by Guilty Plea Where Defendant Not Informed of Possibility of Deportation Can Not Be Applied Retroactively

The First Department, in a full-fledged opinion by Justice Tom, reversed the sentencing court’s vacation of defendant’s conviction (by guilty plea).  The sentencing court had reversed the conviction on the ground defendant had not been informed of the risk of deportation based on the plea.  The sentencing court’s ruling was based upon the US Supreme Court’s ruling in Padilla v Kentucky, 559 US 356 (2010), which the sentencing court determined should be applied retroactively.  The First Department explained that Padilla should not be applied retroactively, overruling First Department and 3rd Department precedent:

Padilla has been accorded retroactive application by this Court …and the 3rd Department…. However, since Padilla “marks a break from both Federal and State law precedents . . . and fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (People v Eastman, 85 NY2d 265, 275 [1995]).

The holding that Padilla announced new law, by which this Court is bound, dictates the conclusion that it has no retroactive application. As Eastman explains:  “Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’ or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial” (Eastman, 85 NY2d at 275, quoting Teague, 489 US at 311-312).

The rule announced in Padilla does neither, merely prescribing a duty imposed on counsel, and does not warrant retroactive application. Thus, defendant may not avail himself of the ruling… People v Verdejo, 2013 NY Slip Op 04913, 1st Dept 6-27-13

 

,

Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

, , ,

Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

, , , ,

Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal

In reversing defendant’s assault conviction, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined a defendant with a conviction pending appeal may not be cross-examined about the underlying facts of that conviction until direct appeal has been exhausted.  Judge Lippman wrote:

At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts, and the sentence he received. After the People rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant’s constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records…. Defendant was retried and acquitted.  * * *

…[I]n ruling that the prosecution could cross-examine defendant about the underlying facts of his rape conviction, presumably the court was not implying that defendant could not assert his Fifth Amendment privilege in response to those questions. However, “taking the Fifth,” is highly prejudicial as to both the instant case and the conviction pending appeal. To a jury, it appears as though defendant is admitting the truth of the leading questions posed by the prosecutor; “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf” …. More problematic, defendant must invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself; otherwise he might waive the privilege… .  People v Cantave, No 129, CtApp 6-25-13

 

, ,

Legal Malpractice Action Based Upon Course of Action Taken in Immigration Proceedings Reinstated

In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case.  The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal:

Given plaintiff’s allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application …. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal…. Plaintiff’s unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff’s position can apply for admission if more than ten years have passed from the date of the alien’s last departure from the United States. Delgado v Bretz & Coven, LLP, 2013 NY Slip Op 04720, 1st Dept, 6-20-13

 

,

Improper to Characterize Trial as “Search for Truth”

The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal).  People v Ward, 758, 4th Dept, 6-14-13

 

,

Proper Procedures for Handling Pro Se Motions to Withdraw Guilty Pleas (Alleging Coercion by Defense Counsel) Explained

The Court of Appeals considered two cases in which, after pleading guilty, the defendant made a pro se motion to withdraw the plea, claiming coercion and undue pressure by defense counsel. In both cases the sentencing judge asked for the defense attorney’s position on the pro se motion, which forced both attorneys to take a position adverse to the client’s, which, in turn, required the assignment of new counsel.  The Court explained how the situation should be handled:

…[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel are challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea …, but may not take a position on the motion that is adverse to the defendant …. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion. People v  Mitchell …, Nos 116, 117, CtApp, 6-11-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy