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IT WAS NOT ERROR TO REMOVE THE DISRUPTIVE DEFENDANT FROM THE COURTROOM WITHOUT WARNING JUST PRIOR THE THE ANNOUNCEMENT OF THE VERDICT AND THE POLLING OF THE JURY; APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE “REMOVAL” ISSUE ON DIRECT APPEAL (CT APP).

The Court of appeals, in a full-fledged opinion by Judge Rivera, over an extensive dissenting opinion, reversing the grant of a writ of coram nobis, determined: (1) defendant was properly removed from court without warning before the verdict and the poll of the jurors; and (2) appellate counsel was not ineffective for failing to raise defendant’s removal from the court on direct appeal. Removal was justified by the defendant’s acts of violence, verbal abuse and screaming in the courtroom:

We reject the prosecution’s claim that any error was de minimis based on the timing of defendant’s removal from the courtroom. There is no material stage of the proceeding that is any less consequential to a defendant’s right to be present. However, we agree that the trial court’s actions were appropriate under the unique circumstances of this case and in no way contrary to law.

A defendant has a constitutional right “to be present at all material stages of their criminal trial,” which includes the reading of the verdict and the polling of the jury … . Further, CPL 260.20 provides that a defendant must be present during the trial but may be removed if they are “disorderly and disruptive” such that the “trial cannot be carried on with [the defendant] in the courtroom [] if , after [they] have been warned by the court that [they] will be removed if [they] continue such conduct, [they] continue to engage in such conduct.” A court may dispense with the constitutional and statutory warnings when it is impracticable to give them … . … That was the case here. * * *

The Appellate Division erroneously concluded that the trial court violated defendant’s right to be present, and therefore incorrectly granted defendant’s writ of error coram nobis on the sole ground that appellate counsel was ineffective for failing to raise this meritless claim on direct appeal … . People v Dunton, 2024 NY Slip Op 02130, CtApp 4-23-24

Practice Point: In situations where warning a disruptive defendant is impractical, it is not error to remove the defendant from the courtroom without warning. Here defendant was removed just prior to the announcement of the verdict and the polling of the jurors, a material stage of the trial. Under the unique circumstances of this case defendant’s removal was not error.

 

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COUNSEL’S CONDUCT WAS NOT FRIVILOUS OR DESIGNED TO DELAY; COUNSEL WAS NOT GIVEN THE OPPORTUNITY TO BE HEARD BEFORE SANCTIONED; THE JUDGE DID NOT INDICATE WHY THE AMOUNT OF THE SANCTION WAS APPROPRIATE, $100 SANCTION REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the arguments made by counsel (appellant) were not “frivolous,” counsel’s conduct was not designed to delay, harass or maliciously injure another, the judge did not give counsel an opportunity to be heard before imposing sanctions, and the judge did not indicate why the amount of the sanction was appropriate:

Appellant properly raised procedural and substantive arguments concerning why the court should not direct petitioner to compel respondent, a 62-year-old woman with end stage renal failure, to undergo painful dialysis three times a week for three hours a day and receive powerful psychotropic medication against her wishes in order to restrain her. …

Although the court warned the parties not to interrupt each other or the court, and admonished appellant a couple of times during the hearing about such conduct, the record does not reflect a pattern of such behavior on her part or demonstrate that it caused delay. Further, the court did not cite any false statements made by appellant sufficient to warrant sanctions.

The court also failed to give appellant a reasonable opportunity to he heard on the sanction before it was actually imposed …, and did not indicate why the amount imposed was appropriate … . Matter of Kings County Hosp. v M.R., 2024 NY Slip Op 02016, First Dept 4-16-24

Practice Point: Conduct by counsel in this case was not frivolous; it was not designed to delay and did not involve false statements; sanctions were not warranted.

Practice Point: Before a judge sanctions an attorney, the attorney should be given the opportunity to be heard.

Practice Point: A judge sanctioning an attorney should indicate why the amount of the sanction is appropriate.

 

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DEFENDANT, WHO WAS SUFFERING FROM MENTAL ILLNESS, WAS CONVICTED OF MURDER; THE JURY’S REJECTION OF DEFENDANT’S “EXTREME EMOTIONAL DISTURBANCE” DEFENSE WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REDUCED; THE STRONG DISSENT ARGUED DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SUBMIT EVIDENCE OF DEFENDANT’S MENTAL ILLNESS AT THE SUPPRESSION HEARING (SECOND DEPT).

The Second Department, reducing defendant’s murder conviction to manslaughter first degree, over an extensive dissent, determined the jury’s determination that defendant failed to prove he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law § 125.25[1][a]), was against the weight of the evidence. Defendant, who suffered from mental illness, had been involuntarily committed to to a medical facility. The victim, who was beaten and strangled, allegedly sexually assaulted defendant in the shower. The dissent argued defense counsel was ineffective in failing to introduce evidence of defendant’s mental illness in support of the motion to suppress statements defendant made to a detective:

… [W]e find that the jury’s determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law § 125.25[1][a]) when he killed the victim was against the weight of the evidence. The defendant’s state of mind is a subjective question, and the existence of a reasonable excuse is an objective question … . The first element, the “subjective element[,] ‘focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance'” … . The second element requires an objective determination as to whether there was a reasonable explanation or excuse for the emotional disturbance, and “[w]hether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, ‘however inaccurate that perception may have been'” … .

From the dissent:

At the suppression hearing, the People presented the testimony of the detective who had interviewed the defendant. The defense did not present any evidence. Defense counsel was well aware of the … voluminous psychiatric documentation concerning the defendant’s mental illness. However, defense counsel failed to move to admit into evidence any of these records. Rather, in support of the motion to suppress, defense counsel merely presented arguments that the defendant’s mental state at the time that the Miranda warnings were administered precluded the admissibility of his statements to the detective. People v Andrews, 2024 NY Slip Op 01935, Second Dept 4-10-24

Practice Point: Here, the appellate court determined the jury’s rejection of defendant’s “extreme emotional disturbance” affirmative defense was against the weight of the evidence. The murder conviction was reduced to manslaughter first degree.

 

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BRADY MATERIAL TURNED OVER TO DEFENDANT AFTER HE PLED GUILTY MAY HAVE AFFECTED HIS DECISIONS ABOUT WHAT PLEA OFFER TO ACCEPT AND WHETHER TO MOVE TO DISMISS CERTAIN CHARGES; THEREFORE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS MOTION TO VACATE THE CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea. After the plea a new prosecutor turned over Brady material which had not been disclosed prior to the plea. Under the facts of the case, defendant’s awareness of the Brady material may have affected his decision to plead guilty to criminal possession of a weapon, a C felony. Therefore a hearing on the 440 motion should have been held:

… [T]he [Brady] evidence may have had an impact on the other charges that may have had an effect on what defendant was allowed to plead to — specifically, the attempted murder in the second degree and assault in the first degree counts … . … [T]hese charges meant that because defendant was indicted with a class B armed felony offense, his plea of guilty was required to be at least to a class C violent felony offense (see CPL 220.10 [5] [d] [i]). The lowest charge that satisfied this requirement was criminal possession of a weapon in the second degree, meaning that, based on the evidence before defendant at the time of his plea and sentencing, this was the most favorable charge that he could obtain — a point acknowledged at sentencing. Assuming, without deciding, that such evidence constituted Brady materials that were not disclosed, and further recognizing that the gravamen of the People’s main argument suggests that this evidence does impact the other charges against defendant, the record is unclear what impact the disclosure of this evidence may have had on defendant’s decision to accept or reject the plea offer — particularly in the context of CPL 220.10 (5) (d) (i) and a potential motion to dismiss certain charges (see CPL 245.25 [2]; see also CPL 440.10 [1] [b], [h] … ). Therefore, under the unique circumstances of this case … it was an error for County Court to decide the motion without an evidentiary hearing … . People v Harries, 2024 NY Slip Op 01843, Third Dept 4-4-24

Practice Point: Where the Brady material turned over to the defendant after he pled guilty may have affected his decisions about what plea offer to accept and whether to move to dismiss certain charges, defendant’s motion to vacate his conviction should not have been denied without first holding an evidentiary hearing.

 

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THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint a special prosecutor based on a conflict was supported by the application, but there was no explanation why that conflict no longer existed such that the DA’s office could ultimately handle the case:

County Law § 701 does not specifically detail the procedure to be followed when a special prosecutor is relieved of his or her appointment, and there is little case law relevant to this issue …; however, it is apparent that the only options are to either appoint another special prosecutor or to return the matter, if appropriate, to the DA’s office. Indeed, certain policy considerations weigh in favor of allowing the DA’s office to prosecute the case, namely, a “public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate” … . Here, however, the DA’s office had, less than two months prior, sought appointment of a special prosecutor based upon a conflict. Based upon this sworn assertion of a conflict, County Court (Lambert, J.) entered an order disqualifying the DA’s office and appointing the special prosecutor. Then, when subsequently returning the matter to the disqualified DA’s office, no record was made as to why disqualification was no longer necessary. From the scant record of what occurred here, it is clear that defendant’s concerns regarding the DA’s office’s prior disqualification and possible conflict fell on deaf ears. Thus, because on this record we cannot determine why County Court (Burns, J.) deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office … . People v Faison, 2024 NY Slip Op 01836, Third Dept 4-4-24

Practice Point: Just as the transfer of a criminal prosecution from the DA’s office to a special prosecutor based upon a conflict within the DA’s office requires a valid explanation, the transfer of the criminal prosecution from the special prosecutor back to the DA’s office requires a valid explanation why the conflict is no longer a problem. Here the absence of an explanation rendered the transfer back to the DA’s office reversible error.

 

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HERE DEFENDANT ASHKENAZY’S COUNSEL TOOK POSITIONS WHICH WERE BASED UPON AN INTERPRETATION OF THE EVIDENCE; THE FACT THAT THE JUDGE DISAGREED WITH THE INTERPRETATION DID NOT WARRANT A FINDING COUNSEL ENGAGED IN FRIVOLOUS CONDUCT OR ACTED IN BAD FAITH; THE IMPOSITION OF SANCTIONS WAS REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the attorney’s (defendant Ashkenazy’s counsel’s) actions did not amount to “frivolous conduct” and did not warrant the imposition of sanctions:

Conduct is frivolous if it is “completely without merit in law,” “undertaken primarily to delay or prolong the resolution of the litigation,” or “asserts material factual statements that are false” (22 NYCRR 130-1.1[c]). Here, the record does not support an award of sanctions under any of the prongs. The conduct that Supreme Court found sanctionable does not rise to the level of being frivolous. Supreme Court took issue with counsel’s statement that a document squarely addressing the question of timing did not exist. According to Supreme Court, based on its in camera review of documents, there were communications in which the timing of the payment would have been mentioned if it were in fact due on a date other than the five-year paydown date. Supreme Court disagreed with Ashkenazy’s counsel’s interpretation of the documents, and did so by relying on the absence of a statement in the documents rather than an overt statement contained in the documents. Counsel put forth its interpretation of the documents exchanged during discovery — namely, among other things, Ashkenazy’s personal interpretation of the contract, Ashkenazy’s deposition testimony, and the deposition testimony of Ashkenazy’s drafting counsel — and then made arguments based on its interpretation. Those arguments were not completely devoid of merit. Nor is there any indication in the record that counsel’s interpretation and arguments were made in bad faith ,,, , The fact that the court took a different view of the evidence is not grounds for sanctions…. . Talos Capital Designated Activity Co. v 257 Church Holdings LLC, 2024 NY Slip Op 01786, First Dept 4-2-24

Practice Point: As long as an attorney’s argument is based upon an interpretation of the evidence which is not meritless, the attorney’s argument is not frivolous or made in bad faith such that sanctions are warranted.

 

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CONSULT THIS OPINION FOR IN-DEPTH DISCUSSIONS OF WHEN POSTREADINESS DELAY SHOULD BE ATTRIBUTED TO THE PEOPLE; THE DISSENT ARGUED THIS RULING UPENDS DECADES OF PRECEDENT BY ATTRIBUTING A DELAY ATTRIBUTABLE TO THE COURT TO THE PEOPLE, RESULTING IN A SPEEDY-TRIAL VIOLATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, reversed defendant’s misdemeanor (reckless driving) conviction on speedy-trial grounds. The majority and dissenting opinions are comprehensive and cannot be fairly summarized here. The opinions should be consulted for in depth discussions of how postreadiness delays should be calculated. The dissent argued that decades of precedent have been upended by the majority’s ruling because postreadiness delay which was attributable to the court (the People asked for a 12-day adjournment and the court imposed a 43-day adjournment) was attributed to the People:

Here … the People filed an off-calendar statement of readiness, were not ready on three successive trial dates, and failed to provide any explanation despite the court’s invitation to do so, and despite the opportunity to provide an explanation in their opposition to [defendant’s] 30.30 motion. Indeed, even in their papers to this Court, the People offered no explanation for any of the times they were not ready on a previously scheduled trial date to which they had assented. Surely that conduct does not serve the legislature’s intended purpose of “discourag[ing] prosecutorial inaction” … . Instead, the People’s conduct fits squarely within our dissenting colleagues understanding of postreadiness delays—they are “charged to the People only when the delay is attributable to their inaction and directly implicates their ability to proceed to trial” … .

From the dissent:

The majority’s opinion upends [the] common-sense understanding that courts and parties have relied on for decades by attributing the court’s postreadiness delay to the People. Applied here, this new rule means the People are held responsible for 43 days of postreadiness delay when they requested only a 12-day adjournment and the additional 31 days were undisputedly caused by court—all because the prosecutor appearing did not know the underlying reason for the People’s 12-day adjournment request. People v Labate, 2024 NY Slip Op 01582, CtApp 3-21-24

Practice Point: This opinion should be consulted for in-depth discussions of when postreadiness delay is attributed to the People. The dissent argued decades of precedent have been upended by this ruling because postreadiness delay which should have been attributed to the court was attributed to the People, resulting in a speedy-trial violation.

 

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JUDICIARY LAW 487 CREATES A PRIVATE RIGHT OF ACTION AGAINST AN ATTORNEY FOR DECEIT OR FRAUD ON THE COURT OR ANY PARTY TO A LAWSUIT; HERE THE PROOF OF DECEIT OR FRAUD WAS LACKING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined Judiciary Law section 487 creates a private right of action seeking damages for deceit by an attorney, Here plaintiff alleged her attorney in a medical malpractice action defrauded the court in the calculation of attorney’s fees. The Court of Appeals sided with plaintiff in finding a private right of action under Judiciary Law 487, but found plaintiff’s evidence of deceit or fraud on the defendant-attorney’s part was lacking:

We conclude … that section 487 authorizes a plenary action for attorney deceit under these circumstances. The text of the statute allows recovery of treble damages “in a civil action” where “[a]n attorney . . . [i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party.” The phrase “in a civil action” is most naturally read to include a plenary action. Notably, the provision does not differentiate between an action that might undermine or undo a final judgment and one that does not, or between allegations of fraud that are intrinsic to the underlying action, as opposed to extrinsic. Interpreting the statute to permit a plenary action where the remedy would not entail undermining a final judgment (for example, when the deceit harms a prevailing party), but deny one where a final judgment could be impaired, would require us to rewrite the statute. That we cannot do. * * *

Plaintiff has not identified a material issue of fact as to whether [defendant-attorney’s] representations that the fee calculations comport with the statutory schedule amounted to false statements. Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2024 NY Slip Op 01497, CtApp 3-19-24

Practice Point: Judiciary Law 487 creates a private right of action against an attorney for fraud upon the court or any party to a lawsuit.

 

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner:

… [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because some of the records were sealed after NYPD’s final administrative determination, was abandoned in the prior appeal … , and this Court has “no discretionary authority” to reach this unpreserved issue in the interest of justice in this article 78 proceeding challenging an administrative determination … . The court providently exercised its discretion in holding NYPD in civil contempt, given that NYPD waited several months before disclosing a video and 407 heavily redacted pages of responsive records, after which petitioner was forced to continue litigating its entitlement to complete disclosure of unredacted copies of the records. After this Court’s January 2021 order, NYPD should have disclosed all records responsive to petitioner’s FOIL request, without the need for any further proceedings. “Once the court has issued a valid order, it is not for the recipient of that order to fashion its own remedy” … . The “lengthy delay” caused by NYPD “was unreasonable under the particular circumstances of this case,” warranting an award of attorney’s fees and costs pursuant to FOIL … . Matter of Jewish Press, Inc. v New York City Police Dept., 2024 NY Slip Op 01511, First Dept 3-19-24

Practice Point: Failure to timely respond to a court order requiring the release of documents pursuant to a FOIL request, necessitating further litigation by the petitioner, warrants the award of attorney’s fees to petitioner.

 

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