Attorneys – Page 33 – New York Appellate Digest

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION ALERTING THE APPELLATE COURT TO A COURT OF APPEALS DECISION WHICH CAME DOWN AFTER THE BRIEFS WERE FILED BUT BEFORE THE APPELLATE RULING; MOTION FOR WRIT OF ERROR CORAM NOBIS GRANTED (FOURTH DEPT).

The Fourth Department granted the defendant’s motion for writ of error coram nobis on the ground appellate counsel was ineffective. Although the Court of Appeals decision mandating that sentencing judges consider youthful offender status came down after the briefs were filed, appellate counsel should have made a motion to raise the issue:

Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel’s representation was not constitutionally adequate. “As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]), CPL 720.20 (1) requires ‘that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain’ ” … Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]) was presumably eligible … . Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant’s judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant’s youthful offender status … The order of July 5, 2013 is vacated and this Court will consider the appeal de novo … . Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023. People v Nathan, 2022 NY Slip Op 05479, Fourth Dept 9-30-22

Practice Point: A motion for writ of error coram nobis is a post-appeal tool for arguing appellate counsel was ineffective. Here a Court of Appeals decision requiring sentencing judges to consider youthful offender status even if not raised by the defendant came down after the briefs were filed but before the ruling. Appellate counsel was ineffective for failing to make a motion alerting the appellate court to the new law.

September 30, 2022

Attorneys, Criminal Law, Evidence, Judges

DEFENSE COUNSEL MISTAKENLY FAILED TO NOTIFY THE PROSECUTION OF AN ALIBI WITNESS; DEFENSE COUNSEL ADMITTED HE HAD NO EXCUSE FOR HIS MISTAKE; BECAUSE THE FAILURE WAS NOT DELIBERATE AND WAS NOT AN ATTEMPT TO GAIN A TACTICAL ADVANTAGE, THE DEFENSE MOTION FOR PERMISSION TO SERVE A LATE NOTICE OF ALIBI SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, reversing defendant’s conviction on the two relevant counts, determined defense counsel’s failure to timely notify the prosecution of an alibi witness was not deliberate and the defense motion to serve a late notice of alibi should have been granted:

… [O]n the day prior to jury selection, defendant filed a motion to permit the late service of a notice of alibi with respect to the first two counts of the indictment. In an affirmation in support of the motion, defense counsel explained that, just days after defendant’s arraignment on the indictment, defendant informed him of the existence of a potential alibi witness, and defense counsel’s investigator confirmed the alibi with the witness a week later. Defense counsel averred that, despite his awareness of that witness, he failed to notify the court and the prosecutor of the existence of the witness simply through his own negligence. Defense counsel had no objection to a brief adjournment for the People to investigate the alibi. Defense counsel’s averments and statements to the court established that his failure to comply with the time limits of CPL 250.20 was not willful or motivated by a desire to obtain a tactical advantage but simply a mistake … and, under these circumstances, defendant’s constitutional right to offer the testimony of the alibi witness outweighed any prejudice to the People or their interest in having the trial begin as scheduled … . The court therefore abused its discretion in precluding the testimony of the alibi witness (see Green, 70 AD3d at 45-46). The evidence against defendant was not overwhelming, and thus the harmless error doctrine is inapplicable here … . People v Thomas, 2022 NY Slip Op 05430, Fourth Dept 9-30-22

Practice Point: The failure to notify the prosecution of an alibi witness was an inadvertent mistake. The defense motion for permission to serve a late notice of alibi should have been granted. The denial of the motion denied defendant a fair trial.

September 30, 2022

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

EVEN THOUGH DEFENDANT WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING, HE DID NOT WAIVE HIS RIGHT TO EFFECTIVE COUNSEL; COUNSEL DID NOT COMMUNICATE WITH DEFENDANT AND DID NOT PRESENT A DEFENSE; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined that, although defendant waived his right to be present at the SORA risk-assessment proceeding, he did not waive his right to effective assistance of counsel. Counsel did not communicate with the defendant and did not present a defense at the hearing:

“SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings … would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest” … . Moreover, “[a] fundamental aspect of the attorney-client relationship is communication” and “we have noted that an attorney’s responsibility in the representation of any client requires consulting with and counseling the client” … . Defendant waived his right to be present at the hearing but did not waive his right to challenge the Board’s risk assessment and the People’s proof … . During the hearing, counsel admitted that he lacked “the benefit of [defendant’s] input” in proceeding with the matter and County Court acknowledged that counsel was at a “disadvantage” because he had not had a chance to speak with defendant. The record further reflects that counsel failed to present a defense or raise any objections and did not require the People to present any proof at the hearing. People v Moore, 2022 NY Slip Op 05242, Third Dept 9-22-22

Practice Point: Even where a defendant waives his right to appear at a SORA risk-assessment proceeding, he is entitled to effective assistance of counsel. Counsel, to be effective, must communicate with the defendant and present a defense.

September 22, 2022

Attorneys, Civil Procedure, Constitutional Law, Landlord-Tenant, Municipal Law

A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined petitioner-tenant was entitled to costs, disbursements and counsel fees in petitioner’s action against the city for ordering petitioner to vacate her apartment without first affording a hearing. The order to vacate was made after the code enforcement officer found windows in the apartment which could not be opened and an electrical problem. Before the appeal was heard, the city amended to code to provide an administrative hearing to those ordered to vacate their apartments. Petitioner was deemed to be a prevailing party and was therefore entitled to costs, disbursements and counsel fees:

Petitioner entered into a lease agreement for a second-floor apartment in the City of Schenectady … . … [P]etitioner contacted respondent City of Schenectady Code Enforcement Office and reported problems with the apartment including, among other things, that only three of the windows in the apartment could be opened. Following this complaint, the owner hired a repairperson to fix the windows … . … [A] code enforcement officer conducted an inspection of said premises. Upon finding that several of the second-floor windows still could not be opened and there was an electrical violation, the code enforcement officer issued an order to “immediately vacate” the second floor of the premises due to “sealed emergency rescue openings” and “unsafe conditions.” The order to vacate listed multiple violations of the Property Maintenance Code of New York State (19 NYCRR part 1226 [hereinafter PMCNYS]) and violations of the Code of the City of Schenectady. * * *

… [R]espondents argue that Supreme Court erred in awarding petitioner counsel fees because this matter is not a civil action against the state within the meaning of CPLR 8601 (a) and, nonetheless, respondents were substantially justified in their acts. We disagree. “CPLR 8601 (a) mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … .

… [G]iven [the] statutory and regulatory framework, we are satisfied that respondents’ code enforcement officer acted as a state agent in issuing the order in the course of his enforcement of the PMCNYS…. .

… [P]etitioners were expressly entitled to a post-deprivation administrative hearing pursuant to Property Maintenance Code of New York State § 103.2.1. That provision contemplates a prompt forum for a dispossessed occupant to address his or her concerns with the involved municipal officials. … [R]espondents’ disregard of petitioner’s repeated requests for such a hearing effectively deprived her of a meaningful opportunity to be heard. Respondents’ failure to follow up on the code violations only compounded the problem. Matter of Brown v City of Schenectady, 2022 NY Slip Op 05245, Third Dept 9-21-22

Practice Point: A tenant ordered to vacate an apartment by a code enforcement officer is entitled to a prompt hearing.

Practice Point: A municipal code enforcement officer is an agent of the state. Therefore, a suit against a municipal code enforcement officer is a suit against the state entitling the prevailing party to costs, disbursements and counsel fees.

September 22, 2022

Attorneys, Criminal Law, Immigration Law

DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILITY PLEA AND FOR FAILING TO NEGOTIATE A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea on ineffective assistance ground. Defendant alleged counsel was ineffective (1) for failing to inform him deportation would be mandatory and (2) for not negotiating a plea to an offense which would not mandate deportation:

… [T]he defendant’s contention that his counsel misadvised him as to the immigration consequences of his plea of guilty is not contradicted by the record, and is arguably supported by the representations made by counsel on the record … , which suggest that counsel did not realize that the defenses to deportation which the defendant might have raised in immigration court would be barred by his plea. In any event, the record does not support a conclusion that there is “no reasonable possibility” that the defendant’s allegations are true (CPL 440.30[4][d] …). Furthermore, the defendant’s averments, including that he has resided in the United States since he was 16 years old, and that he had a child when he entered his plea of guilty, sufficiently demonstrate the existence of a question of fact as to whether it was reasonably probable that the defendant would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea … .

… [T]he defendant was entitled to a hearing on his contention that he was denied the effective assistance of counsel based upon his counsel’s failure to attempt to negotiate a more favorable plea. The defendant’s allegation that the People offered another plea which would not have constituted an aggravated felony under federal immigration law demonstrated “a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences” … . People v Alexander, 2022 NY Slip Op 05215, Second Dept 9-21-22

Practice Point: Here defendant was entitled to a hearing on whether his attorney was ineffective for (1) failing to inform him deportation was mandatory for the offense to which he pled guilty and (2) failing to negotiate a plea to an offense which did not mandate deportation.

September 21, 2022

Attorneys, Criminal Law, Evidence

DEFENDANT WAS ENTITLED TO HEARINGS ON HER SECOND MOTION TO VACATE HER CONVICTION ON THE GROUNDS OF NEWLY-DISCOVERED EVIDENCE, ACTUAL INNOCENCE AND INEFFECTIVE ASSISTANCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on her motion to vacate her convictions of predatory sexual assault of a child. Defendant presented affidavits from six witnesses stating the victim had recanted her trial testimony. Defendant’s motion warranted hearings on: (1) the newly discovered evidence (the recantation); (2) actual innocence; and (3) ineffective assistance (failure to present expert evidence to refute the People’s reliance of the Child Sexual Abuse Accommodation Syndrome [CSAAS]):

To prevail [the newly-discovered evidence] claim, a defendant bears the burden of establishing that the evidence meets “the following requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and[] (6) it must not be merely impeaching or contradicting the former evidence” … . * * *

… [W]e conclude that the six affidavits, together with the copies of text messages between victim B and some of the affiants,[FN1] were sufficient to warrant the holding of a hearing, such that County Court’s denial of defendant’s motion on the ground of newly discovered evidence in the absence of such a hearing was error … . * * *

… [D]efendant has established her entitlement to a hearing on her claim of actual innocence. “A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” … .* * *

… [A] defendant may establish that he or she was denied meaningful representation in connection with the failure to call an expert witness by “demonstrat[ing] that such testimony was available, that it would have assisted the jury in its determination or that he [or she] was prejudiced by its absence” … . People v Werkheiser, 2022 NY Slip Op 05188, Third Dept 9-15-22

Practice Point: Here the defendant was entitled to hearings on her second motion to vacate her convictions for predatory assault of the child. She presented newly-discovered evidence (the victim’s recantation) requiring a hearing. Her claims of actual innocence and ineffective assistant (failure to refute the People’s reliance on CSAAS) also warranted hearings.

September 15, 2022

Attorneys, Civil Procedure, Foreclosure

THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Simonsen) in this foreclosure action was never given notice to appoint new counsel after his attorney (Sirianni) was suspended and withdrew from the case. Even though, in granting the Sirianni’s motion to withdraw, the court directed defendant to retain new counsel or continue pro se, defendant was never provided with the notice required by CPLR 321(c). Therefore defendant’s motion to vacate the summary judgment order should have been granted:

CPLR 321(c) provides, inter alia, that “[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party.” “[D]uring the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect” … , and “[o]rders or judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated” … . “It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days” … . The protections of CPLR 321(c) can be waived where the party elects to proceed pro se … . …

This action was automatically stayed by operation of CPLR 321(c) on … the effective date of Sirianni’s suspension from the practice of law. At no point was Simonsen provided, pursuant to CPLR 321(c), with the required notice to appoint another attorney, either by the court or opposing counsel. Moreover, the withdrawal order, which granted Sirianni’s motion pursuant to CPLR 321(b)(2) for leave to withdraw as counsel for Simonsen, had no practical effect as to whether the notice provision of CPLR 321(c) applied to this case … . … [T]he withdrawal order failed to direct service of a notice to appoint another attorney upon Simonsen, and there is no evidence in the record that Simonsen was ever served with a copy of the withdrawal order … . The record is also devoid of any evidence that … Simonsen waived the protections of CPLR 321(c) by electing to proceed pro se. Therefore, the automatic stay was not lifted until Simonsen moved, in effect, to vacate the summary judgment order … . JPMorgan Chase Bank, N.A. v Simonsen, 2022 NY Slip Op 05156, Second Dept 9-14-22

Practice Point: As soon as defendant’s attorney was suspended, the foreclosure action was stayed. Even though the court, in its order granting the attorney’s motion to withdraw, directed defendant to retain new counsel or go ahead pro se, defendant was never given notice to appoint another attorney required by CPLR 321. Therefore the stay was not lifted and defendant’s motion to vacate the summary judgment order should have been granted.

September 14, 2022

Attorneys, Family Law, Judges

THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS BEFORE FATHER BROUGHT A PETITION TO MODIFY CUSTODY; THE JUDGE WAS STATUTORILY DISQUALIFIED FROM THE CURRENT PROCEEDING (THIRD DEPT).

The Third Department determined the Family Court judge in this custody proceeding should have recused himself because, as an attorney, he had represented the mother years before where custody was adjudicated. The judge did not remember representing mother, but disqualification was required by the applicable statute:

“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel” (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). “This prohibition is absolute and establishes a bright-line disqualification rule” … . Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define “an action, claim, matter, motion or proceeding” (Judiciary Law § 14), Black’s Law Dictionary defines a “claim” as “[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional” … .

… [O]ur jurisprudence recognizes that, except in limited circumstances, a parent has an existing and ongoing right to custody of and/or visitation with his or her children … , and it is undisputed that the November 2012 default order and the order on appeal both deal with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involve the same claim of custody, guardianship, or visitation for the same children, we find that Family Court was statutorily disqualified from the instant proceedings … . Matter of John II. v Kristen JJ., 2022 NY Slip Op 05132, Third Dept 9-8-22

Practice Point: It is a bright-line statutory rule that a judge who, as an attorney, represented mother in a custody proceeding is statutorily disqualified from presiding over the same parties in a subsequent custody proceeding.

September 8, 2022

Attorneys, Legal Malpractice, Negligence

FAILURE TO ALLEGE THAT “BUT FOR” DEFENDANT ATTORNEY’S NEGLIGENCE PLAINTIFF WOULD HAVE PREVAILED REQUIRED DISMISSAL OF THE LEGAL MALPRACTICE COMPLAINT (FIRST DEPT).

The First Department determined plaintiff’s legal malpractice complaint was properly dismissed for failing to allege that “but for” the attorney’s negligence plaintiff would have prevailed:

Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action … . Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint … . Markov v Barrows, 2022 NY Slip Op 04780, First Dept 8-2-22

Practice Point: To sufficiently allege legal malpractice, the complaint must allege that “but for” the attorney’s negligence plaintiff would have prevailed.

August 2, 2022

Attorneys, Criminal Law, Evidence

AFTER THE SECOND DEPARTMENT’S VACATION OF DEFENDANT’S “ENDANGERING THE WELFARE OF A PHYSICALLY DISABLED CHILD” CONVICTION (BY GUILTY PLEA) ON “ACTUAL INNOCENCE” GROUNDS WAS REVERSED BY THE COURT OF APPEALS, THE SECOND DEPARTMENT AGAIN VACATED THE CONVICTION ON “INEFFECTIVE ASSISTANCE” GROUNDS; THE MEDICAL RECORDS INDICATED THE CHILD WAS NOT BURNED BY HOT WATER, BUT RATHER SUFFERED AN ALLERGIC REACTION TO MEDICATION (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s motion to vacate her conviction by guilty plea on ineffective-assistance grounds should have been granted. Defendant, a nurse, was accused of endangering the welfare of a physically disabled child by bathing the child in hot water causing thermal burns. This case has a long history, including the vacation of the conviction by the Second Department on the ground of actual innocence. The Second Department was reversed by the Court of Appeals which held the “actual innocence” argument cannot be raised where the defendant has pled guilty. Here the Second Department vacated the conviction again on the ground of ineffective assistance. There was medical evidence which was consistent with the child’s skin condition being caused by a reaction to medication, as opposed to hot water. Defendant’s counsel did not obtain the skin biopsy report, which attributed the skin condition to an allergic reaction to medication, and did not consult a medical expert:

… [D]espite references in the hospital records indicating that a skin biopsy was ordered, the defendant’s former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child’s skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking. In this regard, the pathology report, which was prepared by three pathologists, set forth that the skin biopsies were performed the day after the child was admitted to the hospital, and that the child’s skin condition was “consistent with a diagnosis” of TEN if no oral lesions were present, or Stevens Johnson Syndrome (hereinafter SJS) if associated with oral lesions. An addendum to the report indicated that the clinical data ruled out SJS, and, therefore, implicated TEN as the diagnosis.

The defendant also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling the defendant to plead guilty. At the hearing, the defendant offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child’s skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulated differential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns. People v Tiger, 2022 NY Slip Op 04568, Second Dept 7-13-22

Practice Point: Here defense counsel told defendant to plead guilty to endangering the welfare of a disabled child (by bathing the child in hot water), causing burns. But the medical records included a skin biopsy report which indicated the child suffered an allergic reaction to medication, not thermal burns. The failure to investigate the medical records and the failure to consult a medical expert were deemed to constitute ineffective assistance.

July 13, 2022