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Beating of Child Combined with Two-Hour Delay in Seeking Help Constituted Depraved Indifference

The Court of Appeals, in a full-fledged opinion by Judge Pigott which addressed both the proof requirements for depraved indifference murder and ineffective assistance of counsel, determined that the brutal beating of a 15-month-old baby combined with the failure to summon assistance for 2 hours met the criteria for depraved indifference to human life.  The Court found that the facts proved a brutal course of conduct over a prolonged or extended period of time.  In explaining the operative principles, Judge Pigott wrote:

This appeal is governed by the requirement that, in proving the existence of “circumstances evincing a depraved indifference to human life,” the People must show that, at the time the crime occurred, defendant had a mens rea of “utter disregard for the value of human life” …. Put simply, the People must prove that defendant did not care whether his victim lived or died … . Additionally, the People must prove a second mens rea, namely recklessness. * * *

A brutal course of conduct against a vulnerable victim occurring over a prolonged or extended period of time is more likely to be associated with the mental state of depraved indifference to human life than brutality that is short in duration and is not repeated. This is because the actor had the opportunity to regret his actions and display caring, but failed to take the opportunity. In the present case, defendant argues that his course of conduct against the child was not prolonged. But defendant’s argument focuses exclusively on the duration of his physical assault on the child, which may have been brief. However, this argument ignores the evidence that, by his later inaction “ his failure, over some two hours, to seek medical attention for the child “ defendant turned a brutal assault into a brutal and prolonged course of conduct against a vulnerable victim.  People v Barboni, 102, CtApp, 6-11-13

 

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Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13

 

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Introduction of Statements Made to Police In Absence of Counsel When Defendant Was Represented by Counsel on a Another Matter Deemed Harmless Error

The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel:

While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. Defendant claims that his constitutional right to counsel was violated because he was represented by counsel on the VOP at the time, as evidenced by the notation made on an arraignment memorandum by the Town Justice who arraigned him on the VOP.

Assuming, without deciding, that defendant’s indelible right to counsel was violated, any error was harmless beyond a reasonable doubt…. There is no reasonable possibility that the introduction of the two challenged statements affected defendant’s conviction in view of the other evidence, including two counseled statements to police and testimony of numerous witnesses, that overwhelmingly established his guilt.  People v Augustine, No 109, CtApp, 6-6-13

 

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Failure to Investigate Constituted Ineffective Assistance of Counsel

In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel.  The People’s case rested on the defendant’s statement.  The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement.  Yet the defense attorney did not investigate critical documents relevant to the defendant’s mental condition. The Court of Appeals wrote:

The record reveals that trial counsel sought to build a defense based on defendant’s mental weakness undermining the voluntariness of his admissions of guilt. Despite the focus on defendant’s mental abilities, trial counsel chose to forgo any investigation of the critical documents concerning defendant’s mental condition, and instead, sought to present this defense through the testimony of defendant’s mother, an obviously biased witness. Regardless of whether the decision to present defendant’s condition through his mother’s testimony was a valid strategy, it was, as trial counsel admitted at the post-conviction hearing, a “strategy” “born in the blind.” One he admittedly pursued without benefit of the contents of defendant’s records.

This is not simply a case of a failed trial strategy …. Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits. People v Oliveras, No 105, CtApp, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

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Potential Versus Actual Conflict of Interest

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest.  The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential conflict of interest (at issue in this case):

The defendant bears the burden of establishing a denial of meaningful representation …. When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts …. An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed …and, in such situations, reversal is required if the defendant does not waive the actual conflict ….

In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense … — i.e., the nature of the attorney-client relationship or underlying circumstances bear a “‘substantial relation to the conduct of the defense'” …. The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that [the] defendant show specific prejudice” …. Nevertheless, it is the defendant’s “heavy burden” … to show that a potential conflict actually operated on the defense ….  People v Sanchez, No 107, CtApp, 6-4-13

 

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Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Rendered Her Position Adverse to Defendant’s

The defendant made a pro se motion to withdraw his plea of guilty.  In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should not have questioned defense counsel about the merits of the motion and should have assigned new counsel to the defendant once it was clear counsel’s position was adverse to defendant’s:

Under  established principles, defense counsel has no  duty to support a pro se motion that he or she has determined to be without merit, and failing to support such a motion “does not constitute a position adverse to the client” ….   Here, after properly informing County Court that she would not be making the motion on behalf of defendant, defense counsel responded to the court’s substantive inquiry that she found no  “legal basis” for his motion. Indeed, in denying defendant’s request for new counsel or for more time to make the motion, the court reiterated that defense counsel “in her knowledge and  understanding of this case [stated] that there’s no legal basis to withdraw your plea of guilty.”  “[O]nce counsel took a position adverse to . . . defendant, the court should not have proceeded  to determine the motion  without first assigning. . . defendant new counsel” … . People v McCray, 104161, 3rd Dept, 5-30-13

 

 

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Absent Defendant Did Not Receive Effective Assistance of Counsel​

The Court of Appeals held that a defendant who was absent from his trial received ineffective assistance of counsel:

It is well established that a defendant may not, by his absence alone, “waive his right to effective assistance of counsel” …. Although a defendant’s willful absence from trial surely hampers an attorney’s ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant’s cooperation with his attorney in formulating a defense before absconding, there was a “reasonable basis for an active defense” ….  People v Diggins, No 96, CtApp, 5-30-13

 

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Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

The plain language of the retainer states that the law office’s representation of Blisko includes work leading “up to” a trial, “but not including an actual trial.” Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

 

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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