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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined defendant did not receive effective assistance of counsel. Defendant was charged with criminal possession of a weapon. The weapon was discovered by a police officer under a floor mat in defendant’s car after a traffic stop. At trial defendant claimed he was stopped on his way to surrender the weapon to a gun buyback program. The majority concluded defense counsel was ineffective for failure to request the “voluntary surrender” jury charge. Defense counsel requested the “temporary and lawful possession” jury charge, which was directly contradicted by the trial evidence:

Here, counsel knew that his client’s explanation was that he was traveling to turn the gun in to the NYC gun buyback program. Indeed, in his opening statement, counsel admitted to the elements of the crime of criminal possession of a weapon and offered a defense, explaining that Mr. Debellis [defendant] , in desperate need of money, was transporting the gun to a police buyback program in the Bronx.

However, after announcing that line of defense and supporting it through Mr. Debellis’s trial testimony, counsel failed to request the only jury instruction that would give it any legal weight—a defense of voluntary surrender under PL 265.20 (a) (1) (f). Counsel premised his case instead on the common-law defense of temporary and lawful possession, which was completely inapplicable given the length of time Mr. Debellis had possessed the weapon in contravention of a preexisting court order that he had to divest himself of all firearms. Even after the court explicitly told counsel that that it would not instruct the jury on temporary and lawful possession because it did not fit the evidence, counsel failed to request an instruction on the statutory defense that fit his client’s testimony and counsel’s own argument to the jury

From the dissent:

Today the majority holds that defense counsel was ineffective for not requesting a jury charge that would have allowed the jury to find that defendant’s possession of the unlicensed gun was lawful because, at trial, defendant claimed for the first time that he was on his way to a police agency to surrender the gun. Because no reasonable view of the undisputed facts supports such a charge, defendant was not entitled to it. Nor was counsel’s overall performance deficient. Nevertheless, defendant, who denied having a weapon when asked by the police and who was allowed access to the area where he had hidden a loaded gun based on that false statement, thereby endangering the life of the officer who stopped him and numerous nearby civilians, now has his unlawful possession of a weapon conviction reversed by this Court. People v Debellis 2023 NY Slip Op 05964, CtApp 11-21-23

Practice Point: Here defense counsel did not request a jury charge for the only viable defense offered by the defendant in his trial testimony (i.e., he was on his way to surrender the weapon to the gun buyback program when the police found it under the floor mat of his car). The majority held defense counsel was ineffective. The dissent focused on the weakness of the defense. Bottom line, if the defendant has only one defense, even if it is not credible, defense counsel is obligated to present it to the jury.

 

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THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:

Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .

From the dissent:

At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23

Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.

 

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DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:

Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *

From the dissent:

The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23

Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.

Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.

Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.

 

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice:

The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as plaintiff’s son here, made many of the same allegations of negligence and malpractice against defendant as plaintiff does in this case. Both cases involved whether defendant properly monitored the patients and the babies and made proper decisions regarding oxytocin administration, and whether defendant made the proper decision to continue with vaginal delivery instead of proceeding with a cesarean section. Alternatively, defendant established that Laraby received specific, confidential information in the prior litigation that is substantially related to the present litigation … . In particular, Laraby had access to the litigation strategy to defend defendant against the allegations of malpractice, including speaking with and receiving reports of expert witnesses. Brandice M.C. v Wilder, 2023 NY Slip Op 05871, Fourth Dept 11-17-23

Practice Point: Here plaintiff’s attorney had represented the defendant in this medical malpractice action in a case where the issues were substantially the same. The motion to disqualify the attorney and the attorney’s small law firm should have been granted.

 

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

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MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the contested matters before the trial court can be heard:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . Generally, the court’s determination should be made only after “a full and plenary hearing and inquiry” … or, where a party failed to appear, after an inquest … .

Here, the Family Court granted the mother’s petition to modify the prior order, upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates … . Under the circumstances, the court improvidently exercised its discretion in denying the application of the father’s attorney to set the matter down for an inquest … .  Matter of Otero v Walker, 2023 NY Slip Op 05607, Second Dept 11-8-23

Practice Point: Generally where a party defaults in a custody matter, an inquest should be held before any ruling.

Practice Point: Upon appeal from an order made upon a party’s default, only the contested matters before the trial court come up for review.

 

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​EMOTIONAL AND PSYCHOLOGICAL DAMAGES, AS OPPOSED TO PECUNIARY DAMAGES, WILL NOT SUPPORT AN ACTION FOR BREACH OF FIDUCIARY DUTY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined emotional and psychological damages, as opposed to pecuniary damages, will not support an action for breach of fiduciary duty:

… [P]laintiffs proffered no evidence showing that Atesa [plaintiff] sustained pecuniary damages, and adduced proof identifying only emotional and psychological injuries. Contrary to plaintiffs’ contention, the allegations in the complaint that Atesa incurred financial expenses as a result of having to seek medical treatment and retain new counsel due to defendants’ alleged misconduct are insufficient to defeat summary judgment, absent any supporting evidentiary proof (see CPLR 3212[b] …). Plaintiffs’ contention that they could present such proof at trial is unavailing … . Because plaintiffs failed to raise a triable issue of fact as to whether recoverable damages were incurred, summary judgment dismissing the claim should have been granted … . Pacelli v Peter L. Cedeno & Assoc., PC, 2023 NY Slip Op 05448, First Dept 10-26-23

Practice Point: Emotional and psychological damages, as opposed to pecuniary damages, will not support an action for breach of fiduciary duty.

 

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​ ALTHOUGH THE STATUTORY SPEEDY TRIAL RULES DO NOT APPLY TO STAND-ALONE TRAFFIC INFRACTIONS, THE PEOPLE AGREED TO DISMISS THE TRAFFIC INFRACTION ON SPEEDY TRIAL GROUNDS; THE PEOPLE THEN APPEALED; THE COURT OF APPEALS, OVER A DISSENT, HELD THE MATTER WAS NOT REVIEWABLE (CT APP). ​

The Court of Appeals, over a dissenting opinion, determined that the error was not reviewable because the People consented to it. In 2022 the Court of Appeals held that the statutory speedy trial rules do not apply to traffic infractions which stand alone, i.e., the traffic infraction is not charged along with a felony, misdemeanor or violation. The defendant’s traffic infraction had been dismissed on speedy-trial grounds with the People’s consent. The People then appealed the dismissal:

On appeal, the People contend that CPL 30.30 (1) (e)—which took effect more than a year before defendant was even charged—was enacted to clarify that CPL 30.30 (1) applies ” ‘to accusatory instruments charging traffic infractions jointly with a felony, misdemeanor, or violation,’ ” but that, as we stated in People v Galindo, ” ‘actions involving only traffic infractions would still not be covered by the speedy trial statute’ ” (quoting 38 NY3d 199, 201, 206 [2022] [emphasis added]). Thus, the instant appeal involves no intervening newly declared principle of law.

Because the People agreed in Town Court that CPL 30.30 applied to the simplified traffic information, the issue is unreviewable (see CPL 470.05 [2]). Contrary to the dissent’s suggestion, we engender no unjust result by applying our well-settled principles governing reviewability to reject the People’s attempt to reinstate the accusatory instrument against this pro se defendant, now almost two years after dismissal, by renouncing their express concession that CPL 30.30 applied. People v Lovett, 2023 NY Slip Op 05348, CtApp 10-24-23

Practice Point: If the People agree to an erroneous ruling and then appeal that ruling, the matter may not be reviewable by an appellate court.

 

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DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​

The Court of Appeals, reversing the Appellate Term. determined the defendant was not “without counsel” during an eight-day period. Therefore that eight-day period must be charged to the People and the People were not ready for the trial within the statutory 90 days:

Under CPL 30.30 (4) (f), a “period during which the defendant is without counsel through no fault of the court” must be excluded when calculating the time within which the People must be ready for trial. However, a defendant is not “without counsel” within the meaning of the statute when appearing with substitute counsel … .

Here, defendant was assigned an attorney from The Legal Aid Society during his arraignment. On November 5, 2018, the date that defendant’s case was calendared for trial, defendant appeared in court with a different attorney from that office, who informed the court that defendant’s original attorney was leaving the office and the case was being reassigned to another attorney from Legal Aid. Defendant plainly was represented at that appearance and was therefore not “without counsel” … . People v Justice A., 2023 NY Slip Op 05306, CtApp 10-19-23

Practice Point: Appearing with substitute counsel is not appearing “without counsel” within the meaning of CPL 30.30 (4)(f). The associated time should not have been charged to the defendant. The People therefore were not ready for trial within the statutory 90-day period.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule:

“[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion” … . A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party … . “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … . Here, Lopez [defendant] failed to demonstrate that any anticipated testimony by Gamez’s counsel would be necessary to Lopez’s case and that such testimony would be prejudicial to Gamez … . Gamez v Lopez, 2023 NY Slip Op 05250, Second Dept 10-18-23

Practice Point: The criteria for the disqualification of counsel pursuant to the advocate-witness rule were not met here. The testimony of the opposing party’s counsel must be necessary to the moving party’s case, and the testimony must be prejudicial to the opposing party.

 

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