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Corroborative Evidence for Confession—Strategy Behind Not Requesting Lesser Included Offenses and Severance

In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed.  In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed  People v McGee, No. 30, CtApp 3-21-13

 

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Counsel for Nonparty Witness Cannot Participate in Deposition

The Fourth Department determined that counsel for a nonparty witness cannot object, i.e., participate, in a deposition of that witness.  The Court wrote:

…“[C]ounsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses ‘shall proceed as permitted in the trial of actions in open court’ ” (id. [emphasis added]), and it is axiomatic that counsel for a nonparty witness is not permitted to object or otherwise participate in a trial (see e.g. id.).We recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3 provide that an “attorney” may not interrupt a deposition except in specified circumstances.Nevertheless, it is well established that, in the event of a conflict between a statute and a regulation, the statute controls (seeMatter of Hellner v Board of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1651).  Justices Fahey and Martoche dissented in a memorandum. Sciara v Surgical Associates of Western New York, P.C., et al, 1466, CA 12-00809, 4th Dept. 3-15-13

 

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From the Point When a Director’s Position Becomes Adverse to the Corporation, the Director Is Not Entitled to Discovery of the Corporation’s Attorney-Client Communications

Plaintiff was both a shareholder in and a director of defendant corporation. In her role as a shareholder, plaintiff brought a special proceeding to compel the corporation to pay the fair market value of her shares pursuant to Business Corporation Law section 623.  The special proceeding was prompted by the corporation’s sale of a 65% interest in the business to a third-party investor—a sale to which plaintiff objected.  During the course of discovery, the defendant corporation’s lawyers turned over thousands of documents to the plaintiff.  Included in those documents were attorney-client communications which took place after plaintiff had voiced her strong objection to the sale of the 65% interest in the business. The motion court determined that the plaintiff, as a director, was a corporate insider by definition, and was therefore entitled to all the corporation’s attorney-client communications, even those communications which took place after she voiced her opposition to the sale.  The First Department reversed.  The Court determined that, once plaintiff objected to the sale and hired her own attorney, her interests became “adverse” to those of the corporation, and she was not entitled to the attorney-client communications made after that point. [There is a long dissent arguing that, pursuant to CPLR 5511, the appellants were not aggrieved by the ruling appealed from and, therefore, the First Department did not have jurisdiction to entertain the appeal.] Barasch v Williams Real Estate Co. 2013 NY Slip Op 01613, 7405, 500054/09, 1st Dept. 3-14-13

 

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Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother.  In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13

 

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Law Office Failure Justified Vacation of Default Judgment

The Second Department found the evidence in the motion to vacate a default was sufficient: “Here, the moving defendants’ claim of law office failure was supported by a ‘detailed and credible’ explanation of the default.  Moreover, the moving defendants demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion. Accordingly, the Supreme Court providently exercised its discretion in vacating their default in opposing the plaintiff’s motion for summary judgment.”  Properties, LLC v McDonald, LLC, et al, 2011-11434, 2012-04529, Index No 14525/09, 2nd Dept. 3-6-13

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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any failure by defense counsel to move to suppress identification testimony did not rise to ineffective assistance.

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification of the defendant by the victim at a particular time, they did not provide notice of a subsequent identification by the victim a few minutes later after defendant was in custody:

Assuming that there was a section 710.30 violation, it might not have resulted in exclusion of the evidence in question. CPL 710.30 (2) provides for the possibility of late notice, and a belated suppression hearing, when the People show “good cause.” The belated notice and hearing may occur during the trial …, and if the trial court thought the People had made an excusable error it might have granted such a remedy here.

In short, it is not obvious that defendant’s counsel could have successfully sought preclusion of the evidence of the victim’s post-arrest identification under section 710.30. An argument for preclusion could have been made, but not an argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” … . Counsel’s performance should not be “second-guessed with the clarity of hindsight” … . Any deficiency in her performance was not so great that it can support an ineffective assistance claim.

Nor has defendant shown any serious likelihood that he was prejudiced by trial counsel’s alleged error. Even if the trial court had precluded evidence of the victim’s post-arrest identification, the evidence against defendant would remain strong. People v Vasquez, 2013 NY Slip Op 01016 [20 NY3d 461], CtApp 2-19-13

 

 

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Attorney Conflict Affected Defense Requiring Reversal.

The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest.  The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal.  One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case.  People vs McGillicuddy, 7 12-00530 Fourth Dept. 2-8-13

 

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No Right to Counsel in Presentence Interview.

There is no right to counsel in a presentence interview with the probation department.  People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13

 

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