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THE JUDGE PRESIDING OVER THIS TRAFFIC ACCIDENT CASE SHOULD HAVE GRANTED PLAINTIFFS’ RECUSAL MOTION; DEFENSE COUNSEL WAS ACTIVE IN THE JUDGE’S ELECTION CAMPAIGN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge in a traffic accident case should have granted plaintiffs’ recusal motion. Plaintiffs had learned defense counsel was active in the judge’s election campaign and had failed to disclose that information to the parties:

…Justice Muller did not disclose to the parties that defense counsel and his law firm were providing assistance to his judicial campaign. Plaintiffs independently learned of the fundraiser, prompting them to raise the issue and seek the judge’s recusal. The record establishes that the law firm hosted a fundraising event for Justice Muller, that the names of defense counsel and five other attorneys from his firm appeared as supporters on Justice Muller’s campaign website and that defense counsel wrote a favorable opinion letter endorsing Justice Muller’s candidacy which appeared in several news publications throughout the Fourth Judicial District. Furthermore, the JCEC’s [Judicial Campaign Ethics Center’s] … letter clearly states that Justice Muller was “disqualified, subject to remittal, from presiding over matters involving defense counsel and his law firm, including partners and associates, during the course of [his] judicial campaign” … . Although we have no way of knowing Justice Muller’s reasons or intentions, it is undisputed that he did not disclose the JCEC letter to the parties until a month after receiving it, when his campaign results became official, and he was elected to a new term of office. As judges need to avoid even the appearance of impropriety, Justice Muller should have disclosed the JCEC letter upon receipt and recused from the matter as soon as possible (see Rules Governing Jud Conduct [22 NYCRR] §100.3 [E] [1]; Advisory Comm on Jud Ethics Op 03-64 [2003]). Therefore, Justice Muller abused his discretion in denying plaintiffs’ motion for recusal. Minckler v D’Ella, Inc., 2024 NY Slip Op 00017, Third Dept 1-4-24

Practice Point: Here the judge’s failure to disclose to the parties defense counsel’s involvement in the judge’s election campaign required recusal.

 

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THE PROSECUTOR’S REASONS FOR STRIKING THREE BLACK PROSPECTIVE JURORS WERE EITHER NOT RELEVANT TO THE CASE OR INACCURATE AND WERE DEEMED PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor’s reasons for striking three Black prospective jurors were pretextual. The proffered reasons were deemed irrelevant and/or inaccurate. The court also noted that the prosecutor improperly told the jury the defendant was guilty:

Supreme Court improperly determined that the facially race-neutral reasons proffered by the prosecutor during step two were not pretextual. With respect to prospective juror no. 6, the prosecutor stated that since this prospective juror “lives on church property,” there were concerns “as to religious reasons, sympathy reasons.” However, during voir dire, this prospective juror was never questioned concerning her religious affiliation, or whether her living situation would make her more sympathetic to the defendant … . …

… “[T]he prosecutor did not offer any explanation for how [two of the] juror[s’] employment [situations] [working with mentally ill people] related to the factual circumstances of the case or the qualifications of the juror[s] to serve” … . People v Vera, 2023 NY Slip Op 06758, Second Dept 12-27-23

Practice Point: Here the prosecutor’s reasons for striking three Black prospective jurors were not relevant to the facts of the case and/or were inaccurate. The Second Department deemed the reasons pretextual and ordered a new trial.

 

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THE JUDGE HAD A COURT OFFICER COMMUNICATE WITH THE JURY ABOUT A SUBSTANTIVE MATTER OUTSIDE OF THE DEFENDANT’S PRESENCE; DEFENSE COUNSEL DID NOT OBJECT; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should not have communicated with the jury outside of the defendant’s presence and should not have delegated the court’s duty to a court officer. When the jury sent out the verdict sheet, the judge noticed a mistake. The jury had indicated “guilty on all counts,” including count 2, but the jury should have been instructed to skip count 2 if it found defendant guilty of count 1. The judge sent a court officer to the jury to explain the mistake. The jury came back with a verdict of guilty on count 2. Defense counsel did not object to the procedure:

“[A] defendant has the right to be present during all critical stages of a trial and . . . this includes the right to be present when the jury is given instructions or information by the court” … . “Equally true is that the court may not delegate to a nonjudicial staff member its authority to instruct the jury on matters affecting their deliberations” … . While “[a] Trial Judge may properly authorize a court officer to speak to a deliberating jury when the subject of the communication is administerial[,] . . . a Trial Judge who authorizes a court officer to communicate with a jury on matters which are not administerial not only errs, but commits an error so grave as to warrant reversal even though the defendant’s attorney might have consented to the occurrence of the error” … .

… Supreme Court improperly delegated a judicial duty to a nonjudicial staff member at a critical stage of the proceedings. … [T]he instruction was not a mere ministerial matter. Under the circumstances, where the jury was deliberating and had expressed confusion about the relationship between counts one and two, the court’s rejection of the verdict sheet and the instruction to correct it was an instruction regarding the jury’s deliberation … . Thus, the defendant was absent during a critical stage of the trial, and the court improperly delegated a judicial duty to a nonjudicial staff member … . People v Fulton, 2023 NY Slip Op 06750, Second Dept 12-27-23

Practice Point: It is reversible error for a judge to communicate with the jury outside the defendant’s presence.

Practice Point: It is reversible error for a judge to allow a court officer to communicate with the jury about a substantive matter.

 

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THE RESPONDENT CITY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS SURROUNDING THE BUS-VEHICLE COLLISION AND WAS NOT PREJUDICED BY THE TEN MONTH DELAY IN FILING THE NOTICE OF CLAIM; PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, EVEN IN THE ABSENCE OF AN ADEQUATE EXCUSE (LAW OFFICE FAILURE) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent city in this bus-vehicle accident case had timely knowledge of the essential facts of the incident and therefore was not prejudiced by the late notice of claim. The court noted that law office failure is not an adequate excuse for failing to timely file a notice of claim, but using that excuse did not mandate denial of the motion:

Supreme Court improvidently exercised its discretion in denying petitioner’s application, as petitioner established that respondents acquired actual knowledge of the essential facts within the statutorily prescribed filing period … . As the record showed, the accident involved an NYCTA-owned bus and an NYCTA driver, and was immediately investigated by an NYCTA supervisor. Therefore, petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were permitted leave to file a late notice of claim … .

In response to petitioner’s showing, respondents offered no particularized evidence suggesting that they would be prejudiced by the delay. Therefore, respondents have failed to rebut petitioner’s showing … . Clarke v New York City Tr. Auth., 2023 NY Slip Op 06591, First Dept 12-21-23

Practice Point: If the municipality has timely knowledge of the essential fact underlying a claim (here a bus-vehicle accident) and is not prejudiced by the delay, a motion for leave to file a late notice of claim may be granted even in the absence of an adequate excuse.

 

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THE FOIL REQUEST FOR DOCUMENTS PREPARED BY COUNSEL FOR THE BOARD OF PAROLE WAS PROPERLY DENIED; THE DOCUMENTS ARE PROTECTED FROM DISCLOSURE BY THE ATTORNEY-CLIENT PRIVILEGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the FOIL requests made to the Board of Parole of the Department of Corrections and Community Supervision (DOCCS) were properly denied. The documents were protected by attorney-client privilege:

… (DOCCS) properly withheld 11 documents prepared by counsel for the Board of Parole as privileged communications exempt from Freedom of Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise Board of Parole commissioners on how to comply with their legal duties and obligations. The documents reflect counsel’s legal analysis of statutory, regulatory and decisional law and they therefore constitute attorney-client communications that were prepared “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,” specifically, to provide guidance on matters relevant to the Commissioners’ exercise of their discretionary authority … . Accordingly, DOCCS properly invoked the statutory FOIL exemption for privileged matters (see Public Officers Law § 87 [2] [a]; CPLR 4503 [a]). Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 06466, CtApp 12-19-23

Practice Point: A FOIL request for documents protected by attorney-client privilege is properly denied.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN PROVIDING DISCOVERY; THE CERTIFICATE OF COMPLIANCE WAS INVALID AND DID NOT STOP THE SPEEDY-TRIAL CLOCK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the People did not exercise due diligence in providing discovery to the defense. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. The prosecution was time-barred:

In 2019, the New York State Legislature enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). * * *

Due diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s conclusions are supported by the record … . Viewed under the proper legal standard, there is no record support for the conclusion of the courts below that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case.

The belated disclosure here consisted of routinely produced disclosure materials—the creation of at least one of which was mandated by law … . The absence of such significant items of disclosure was readily noticed by the defense, which then brought it to the attention of the People and the court. The prosecution had two opportunities to establish that they had exercised due diligence, but failed to do so. At the appearance on May 26th, in which defense counsel first called attention to the missing items, the prosecutor simply asserted that he had “checked” without any elaboration as to what efforts were made to verify whether there was any outstanding discovery or whether the disclosure requested by the defense—which was in the possession of the People (see CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over. When the parties appeared on July 6th following Bay’s CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession. People v Bay, 2023 NY Slip Op 06407, CtApp 12-14-23

Practice Point: Here the People did not exercise due diligence in complying with their discovery obligations. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. If the People can demonstrate they exercised due diligence in providing discovery, the COC will not be deemed improper.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD DEPT).

The Third Department, vacating defendant’s sentence, over a dissent, determined that the defense was not given an opportunity to address the sentencing judge’s sua sponte decision to enhance the agreed-upon sentence based on defendant’s responses to questions posed by probation for the presentence report. The prosecutor did not see any conflict between defendant’s plea allocution and her responses in the report and did not call for an enhanced sentence: So the defense was taken by surprise.. Defense counsel requested a hearing but the request was denied:

After the parties had an opportunity to state their arguments, the court engaged in a lengthy colloquy before … stating that it disagreed with the People’s conclusion that there was no violation of the plea agreement and determining that it would enhance defendant’s sentence to the maximum allowable term of imprisonment. It was at this point that defendant first had any indication that she was facing a potential sentencing enhancement and, in response, defense counsel immediately requested a hearing, which County Court summarily denied.… .In effect, that determination precluded defendant and her counsel an opportunity to refute the accuracy of the officer’s statements in the PSR that were relied upon by the court in finding that she had violated a condition of her plea by failing to answer the probation officer’s questions truthfully … . Moreover, County Court made no further inquiry as to whether defendant understood the questions asked during her Probation Department interview and whether she had answered them untruthfully or contrary to her statements at her plea proceedings … .

While a hearing is not necessarily required in all instances, the circumstances before us warranted some form of inquiry before County Court could impose an enhanced sentence … . People v Dibble, 2023 NY Slip Op 06411, Third Dept 12-14-23

Practice Point: When the judge, sua sponte, decided to enhance defendant’s agreed-upon sentence because of defendant’s responses to questions posed by probation for the presentence report, defense counsel immediately requested a hearing to address the issue (which had not been raised by the prosecution). The request was denied. The Third Department agreed that a hearing was required in this case and vacated the sentence.

 

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THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Susan K., a psychiatric patient, did not voluntarily waiver her right to counsel in this proceeding to provide treatment without her consent:

… [T]he petitioner commenced this proceeding for permission to administer electro-convulsive therapy and various proposed psychotropic drugs to Susan K., a patient at a psychiatric facility, without her consent. Following a hearing, at which the Supreme Court permitted Susan K. to proceed pro se, the court issued an order authorizing the petitioner to administer the proposed course of treatment over Susan K.’s objection. Susan K. appeals. * * *

Supreme Court did not discuss with Susan K. the dangers and disadvantages of proceeding pro se, did not apprise Susan K. “of the ‘importance of the lawyer in the adversarial system of adjudication,'” and did not elicit an acknowledgment that Susan K. understood the perils of self-representation … . Because the court failed to conduct a sufficiently searching inquiry of Susan K. to ensure that her waiver of the right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Supreme Court … for a new hearing and a new determination after proper advisements and inquiry into Susan K.’s understanding of the consequences of self-representation. Matter of Susan K. (Hamilton), 2023 NY Slip Op 06369, Second Dept 12-13-23

Practice Point: Here a psychiatric patient represented herself in a proceeding seeking to provide treatment without her consent. The judge did not make sure the patient understood the dangers of self-representation. Matter remitted.

 

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THE ATTORNEY FOR PLAINTIFF IN A PERSONAL INJURY ACTION WAS DISCHARGED WITHOUT CAUSE AFTER A SETTLEMENT HAD BEEN REACHED; THE ATTORNEY SHOULD NOT HAVE BEEN AWARDED A JUDGMENT FOR THE CONTINGENCY FEE; RATHER THE ATTORNEY SHOULD HAVE BEEN AWARDED A CHARGING LIEN PURSUANT TO THE JUDICIARY LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the attorney (Sparrow) who was discharged without cause after a settlement was reached in a personal injury action should have been awarded a charging lien, not a judgment against the former client (Messina):

“An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action and attaches to any recovery” … . Thus, under Judiciary Law § 475, “the attorney who appears for a party has a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination.”

“Although the amount of a charging lien may be determined and fixed before the outcome of the case, the charging lien does not provide for an immediately enforceable judgment against all assets of the former clients” … . “Rather, the lien is security against a single asset of the client—a judgment or settlement reached in favor of the former client in the underlying matter” … .

Here, since Sparrow specifically sought to establish a charging lien pursuant to Judiciary Law § 475, plus a determination as to the amount of the charging lien, and since, at the time of the hearing, the action remained pending, and, therefore, Messina’s [the former client’s] cause of action had not resulted in an outcome in his favor (see id. § 475), the Supreme Court should not have entered a money judgment against Messina … . Messina v Wedderburn, 2023 NY Slip Op 06360, Second Dept 12-13-23

Practice Point: In a personal injury action where the attorney is to be paid a contingency fee, the attorney who has negotiated a settlement and was discharged without cause has the right to a charging lien, not a judgment, against the former client.

 

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