Attorneys – Page 23 – New York Appellate Digest

Attorneys, Evidence, Fiduciary Duty, Legal Malpractice

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.

October 26, 2023

Appeals, Attorneys, Criminal Law

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.

October 24, 2023

Attorneys, Criminal Law

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.

October 19, 2023

Attorneys, Civil Procedure, Evidence

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.

October 18, 2023

Attorneys, Family Law, Judges

FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT).

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

October 17, 2023

Attorneys, Criminal Law, Evidence, Judges

THE MAJORITY CONCLUDED THE ARGUMENT THAT DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO READ THE INDICTMENT TO THE JURY TO SHOW THE DISCREPANCY BETWEEN THE ALLEGATIONS OF COERCION IN THE INDICTMENT AND THE PROOF AT TRIAL WAS RENDERED MOOT BY THE DISMISSAL OF THE COERCION COUNT; THE DISSENT ARGUED THE PROHIBITION DEPRIVED DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE (THIRD DEPT).

The Third Department, over a partial dissent, determined defense counsel was properly prohibited from reading the indictment to the jury. Defense counsel sought to show that the allegations of coercion in the indictment differed from the proof presented by the People. Both the majority and the dissenter agreed that the proof of coercion was legally insufficient. Therefore the majority held defendant’s argument he should have been allowed to read the indictment to the jury was rendered moot. The dissent argued the prohibition deprived defendant of his right to present a defense:

In light of our conclusion, defendant’s contention that County Court erred in declining to charge the jury with certain lesser included offenses of coercion in the first degree has been rendered moot. The same is true with respect to defendant’s assertion that he was improperly prevented from reading the indictment to the jury during his opening statement and closing argument. That is, as limited by his appellate brief, the only particular claim articulated by defendant concerning this issue is that he should have been allowed to highlight for the jury the discrepancy between the allegation listed in the indictment relative to the coercion count and the proof expected to be presented or actually presented at trial, which is the very basis upon which that count has now been dismissed.

From the dissent:

… [D]efendant’s trial strategy hinged on showing that the People had not proven the factual allegations in the indictment, and that County Court stymied that strategy by repeatedly refusing to allow defense counsel to read the indictment to the jury. County Court’s refusal to allow defense counsel to read the indictment to the jury in his opening statement violated defendant’s statutory right to “present[ ] his view of the case” in an opening statement that highlighted what he believed would be weaknesses in the People’s proof … . People v Knapp, 2023 NY Slip Op 05168, Third Dept 10-12-23

Practice Point: Defense counsel wanted to read the indictment to the jury to show the discrepancy between the allegations of coercion and the proof presented at trial. County Court ruled defense counsel could not read the indictment to the jury. The majority held the issue was moot because the coercion count was dismissed because the evidence was deemed legally insufficient. The dissent argued the prohibition deprived defendant of his right to put on a defense.

October 12, 2023

Attorneys, Civil Rights Law, Freedom of Information Law (FOIL)

THE REPEAL OF CIVIL RIGHTS LAW 50-A, WHICH PROHIBITED ACCESS TO POLICE PERSONNEL RECORDS, APPLIES RETROACTIVELY; PETITIONER PREVAILED RE: THE FOIL REQUEST AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, modifying Supreme Court, determined the repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively. The court further held petitioner had prevailed re: the FOIL request and was therefore entitled to attorney’s fees:

… [F]ormer Civil Rights Law § 50-a provided, with limited exceptions, that “[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review” … . The legislature repealed Civil Rights Law § 50-a on June 12, 2020 … , and made several related amendments to FOIL on the same date … , stating that all of this legislation including the repeal of section 50-a “shall take effect immediately” … . The “repeal of Civil Rights Law § 50-a . . . reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them … . * * *

… [W]e hold that the repeal of Civil Rights Law § 50-a applies retroactively to records created prior to June 12, 2020 … . Matter of NYP Holdings, Inc. v New York City Police Dept., 2023 NY Slip Op 05193, First Dept 10-12-23

Practice Point: The repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively.

Practice Point: Where, as here, a petitioner prevails on a FOIL request, petitioner is entitled to the award of attorney’s fees.

October 12, 2023

Appeals, Attorneys, Criminal Law, Sex Offender Registration Act (SORA)

THERE WAS NO EVIDENCE DEFENDANT WAIVED HIS DUE PROCESS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; RISK-ASSESSMENT REVERSED; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing the SORA risk assessment, determined the People did not demonstrate defendant had waived his due process right to be present at the hearing. Although the error was not preserved, the Second Department considered the appeal in the interest of justice:

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing … . “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver … . Here, the record is silent as to whether the defendant received notice of the SORA hearing and there was no evidence, hearsay or otherwise, that the defendant expressed a desire to forego his presence at the hearing. People v Perez, 2023 NY Slip Op 05161, Second Dept 10-11-23

Practice Point: Although a defendant can waive the due process right to be present at the SORA risk-assessment hearing, and the waiver can be proved by hearsay, here there was no evidence of a waiver and the risk assessment was reversed.

Practice Point: At issue here was defendant’s constitutional right to be present at the SORA risk-assessment hearing. Although the issue (his absence from the hearing) was not preserved, the appellate court considered the appeal in the interest of justice.

October 11, 2023

Appeals, Attorneys, Criminal Law

DEFENDANT’S WAIVER OF APPEAL WAS INVALID; HER SENTENCE WAS FURTHER REDUCED PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (SECOND DEPT).

The Second Department determined defendant’s appeal-waiver was invalid and further reduced her sentence pursuant to the Domestic Violence Survivors Justice Act:

The County Court did not discuss the appeal waiver with the defendant until after the defendant had already admitted her guilt as part of the plea agreement … . Further, when the court raised the issue of the appeal waiver, the defendant, who had no known prior contact with the criminal justice system, advised the court that she had not discussed the waiver with her attorney, which required a pause in the proceedings to give her an opportunity to do so. These circumstances, including the defendant’s experience and background, demonstrate that the purported waiver of the right to appeal was invalid … .

Pursuant to the Domestic Violence Survivors Justice Act (L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1 [eff May 14, 2019]; hereinafter the DVSJA), courts may “impose reduced alternative, less severe, sentences in certain cases involving defendants who are victims of domestic violence” … . Here, while the County Court granted the defendant’s application for an alternative sentence under the DVSJA, we find that the sentence imposed should be reduced to the extent indicated herein … . People v Heft, 2023 NY Slip Op 05148, Second Dept 10-11-23

Practice Point: Defendant’s appeal waiver was deemed invalid, in part because she had not discussed the waiver with her attorney and had no prior contact with the criminal justice system.

Practice Point: Here County Court had reduced defendant’s sentence pursuant to the Domestic Violence Survivors Justice Act and the Second Department reduced it further.

October 11, 2023

Attorneys, Criminal Law

DEFENSE COUNSEL TOOK A POSITION ADVERSE TO DEFENDANT ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA; THE MATTER WAS REMITTED FOR CONSIDERATION OF THE MOTION AFTER NEW COUNSEL IS ASSIGNED (FIRST DEPT).

The First Department sent the matter back for a ruling on defendant’s pro se motion to withdraw his plea. Defendant’s attorney took a position adverse to the defendant’s by telling the judge the motion would not succeed. New counsel must be assigned:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting, among other things, deficiencies in defense counsel’s performance with respect to the plea. The court assigned defendant new counsel, and the People opposed defendant’s motion. At the outset of the sentencing hearing, the court asked counsel if he was seeking an adjournment to supplement defendant’s pro se motion, and counsel responded: “No, I am not, and I am not adopting it because I read the People’s [opposition] and reviewed the case law on this issue and it really doesn’t seem to be worthy of asking for my client to take his plea back.” Under the circumstances, counsel took a position adverse to defendant, requiring assignment of new counsel on the motion … . People v Rivera-Santana, 2023 NY Slip Op 05101, First Dept 19-10-23

Practice Point: Here defense counsel told the judge defendant’s pro se motion to withdraw his plea was weak, thereby taking a position adverse to defendant’s. The First Department sent the matter back for assignment of new counsel and consideration of the motion.

October 10, 2023