Attorneys – Page 18 – New York Appellate Digest

Attorneys, Constitutional Law, Criminal Law, Judges

HERE THERE WAS NO VALID REASON TO DENY DEFENDANT’S REQUEST TO REPRESENT HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to represent himself should have been granted:

The court deprived defendant of his constitutional right to self-representation when it denied defendant’s motion to proceed pro se despite defendant’s knowing and voluntary waiver of his right to counsel. A defendant may invoke the right to self-representation where “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, defendant made a timely and unequivocal request to represent himself, and during an extensive inquiry, at which time the court repeatedly warned defendant of the dangers and disadvantages of proceeding pro se, defendant affirmed that he understood the risks and insisted on representing himself at trial … . Defendant’s lack of familiarity with the law was not a proper basis for the denial of his motion … . Further, nothing in the record indicates that defendant’s motion was calculated to undermine or delay the progress of the trial— indeed, the court determined that defendant was not malingering—and defendant’s purported “outbursts” during two prior pretrial video conferences did not suggest an intent to disrupt the proceedings … . People v Ivezic, 2024 NY Slip Op 02785, First Dept 5-21-24

Practice Point: A defendant’s lack of knowledge of the law is not a valid reason for denying defendant’s request to represent himself at trial.

May 21, 2024

Appeals, Attorneys, Criminal Law

THE DA HANDLING THE APPEAL WAS A LAW CLERK TO THE JUDGE WHO PRESIDED OVER THE TRIAL; THE CONFLICT OF INTEREST REQUIRES THE APPOINTMENT OF A SPECIAL PROSECUTOR FOR THE APPEAL (THIRD DEPT).

The Third Department determined the District Attorney handling the appeal had a conflict of interest because she was a law clerk to the County Court judge who presided over the trial. A special prosecutor must be appointed to handle the appeal:

During oral argument on this appeal, the Chief Assistant District Attorney (hereinafter ADA) who appeared on behalf of the People confirmed that she served as the confidential law clerk to the County Court Judge who presided over this matter and did so at the time of the underlying trial. Oral argument was permitted to proceed on the merits, but the Court directed the parties to submit letter briefs addressing the impact, if any, of the ADA’s prior position on her ability to represent the People on appeal. Two days later, this Court handed down People v Pica Torres (___ AD3d ___, 2024 NY Slip Op 02345, *1-2 [3d Dept 2024]), which determined that a similar conflict situation required the appointment of a special prosecutor to handle the appeal. In her responding letter brief, the ADA acknowledges that she was personally and substantially involved in this matter as the trial judge’s law clerk, raising a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (see Rules of Prof Conduct [22 NYCRR 1200.00] rule 1.12 [d] [1]). In her responding letter, counsel for defendant acknowledges that the appointment of a special prosecutor is required. Given the foregoing, we remit the matter for the expeditious appointment of a special prosecutor to handle this appeal. People v McNealy, 2024 NY Slip Op 02728, Third Dept 5-16-24

Practice Point: If the DA handling the appeal was a law clerk to the judge presiding over the trial there is a conflict of interest requiring the appointment of a special prosecutor for the appeal.

May 16, 2024

Attorneys, Civil Procedure, Family Law, Judges

MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded petitioner attorney’s fees as a sanction against mother based on mother’s testimony in the proceedings: Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a):

Pursuant to 22 NYCRR 130-1.1(a), the court is authorized to award a party in a civil action “reasonable attorney’s fees . . . resulting from frivolous conduct.” Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule” … .

Here, the petitioner failed to demonstrate that the mother engaged in frivolous conduct within the meaning of the rule. Contrary to the Family Court’s determination, the mother’s inconsistent statements and evasive testimony were not frivolous conduct within the meaning of 22 NYCRR 130-1.1 … . Matter of Edwin C. v Fenny C., 2024 NY Slip Op 02700,, Second Dept 5-15-24

Practice Point: Here in this Family Court proceeding petitioner was awarded attorney’s fees as a sanction pursuant to 22 NYCRR 131-1.1(a) based on mother’s “inconsistent statements” and “evasive testimony.” Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a). The petition should not have been granted.

May 14, 2024

Account Stated, Attorneys, Contract Law, Family Law

AN ACCOUNT-STATED ACTION IS NOT DUPLICATIVE OF A BREACH-OF-CONTRACT ACTION; HERE PLAINTIFF DIVORCE ATTORNEYS PROPERLY SOUGHT PAYMENT UNDER BOTH ACCOUNT-STATED AND BREACH-OF-RETAINER-AGREEMENT THEORIES AND THE COURT PROPERLY AWARDED SUMMARY JUDGMENT ON THE ACCOUNT-STATED CAUSE OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, clarified the First Department’s position that an account-stated cause of action is not duplicative of a breach-of-contract cause of action. Here plaintiff attorneys represented defendant in a divorce action and sought payment under both an account-stated theory and a breach-of-the-retainer agreement theory. Supreme Court properly granted plaintiff’s motion for summary judgment on the account-stated action:

… [T]his Court wants to make clear that an account stated is an independent cause of action that can be asserted simultaneously with a breach of contract claim and that an account stated claim should not be dismissed as duplicative of a breach of contract claim … . This case falls squarely within our well-established precedent that an attorney can be granted summary judgment on an account stated claim based on the defendant’s receipt and retention of a plaintiff law firm’s invoices seeking payment for professional services rendered, without objection within a reasonable time, even where there is a retainer agreement. As a result, the court properly granted summary judgment to plaintiffs on their account stated claims. Aronson Mayefsky & Sloan, LLP v Praeger, 2024 NY Slip Op 02657, First Dept 5-14-24

Practice Point: In the First Department account-stated causes of action are not duplicative of breach-of-contract causes of action.

May 14, 2024

Account Stated, Attorneys, Judges

THE JUDGE SHOULD NOT HAVE CONSIDERED WHETHER THE INVOICES FOR ATTORNEY’S FEES WERE “REASONABLE;” THE ONLY QUESTION IN AN ACCOUNT-STATED ACTION IS WHETHER THE CLIENT OBJECTED TO THE AMOUNTS OF THE INVOICES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have considered whether the invoices for attorney’s fees were “reasonable” in this account-stated action. The only relevant question is whether defendant objected to the amounts of the invoices:

The court improperly engaged in a reasonableness analysis with regard to the invoices which were the subject of plaintiff’s account stated claim (see Matter of Lawrence, 24 NY3d 320, 343 [2014] [“an attorney or law firm may recover on a cause of action for an account stated with proof that a bill, even if unitemized, was issued to a client and held by the client without objection for an unreasonable period of time(,) (and) need not establish the reasonableness of the fee since the client’s act of holding the statement without objection will be construed as acquiescence as to its correctness”] …; see L.E.K. Consulting LLC v Menlo Capital Group, LLC, 148 AD3d 527, 528 [1st Dept 2017). Jones Law Firm, P.C. v Peck, 2024 NY Slip Op 02502, First Dept 5-7-24

Practice Point: The “reasonableness” of an invoice is not a concern in an account-stated action. The only question is whether the recipient of the invoice objected to the amount.

May 7, 2024

Appeals, Attorneys, Criminal Law, Judges

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.

April 23, 2024

Attorneys, Judges

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.

April 16, 2024

Appeals, Attorneys, Criminal Law, Evidence

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.

April 10, 2024

Attorneys, Criminal Law, Evidence, Judges

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.

April 4, 2024

Attorneys, Criminal Law, Judges, Municipal Law

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.