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THE DEFENDANT WAS CHARGED WITH CRIMINALLY NEGLIGENT HOMICIDE BASED UPON STRIKING THE VICTIM WITH HER CAR; IN SUMMATION THE PROSECUTOR CHARACTERIZED DEFENDANT’S ACTIONS AS INTENTIONAL, DENIGRATED THE DEFENSE THEORIES, REFERRED TO IRRELEVANT CONDUCT, AND ASSUMED FACTS NOT IN EVIDENCE; DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE PROSECUTORIAL MISCONDUCT; THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant was deprived of a fair trial by prosecutorial misconduct. Although some of the errors were not preserved, the appeal was considered in the interest of justice:

The charge of criminally negligent homicide arose from an incident in which the defendant, while operating her motor vehicle, struck Evelyn Rodriguez, who had been standing next to the defendant’s vehicle, thereby causing Rodriguez’s death. The remaining charges were related to the defendant’s conduct of removing and damaging certain personal property placed by Rodriguez and her partner, Freddy Cuevas, on the sidewalk outside a residence owned by the defendant’s mother. The items were part of a memorial to Rodriguez’s and Cuevas’s daughter, Kayla, who had been murdered two years earlier and whose body had been discovered on the defendant’s mother’s property. * * *

The prosecutor mischaracterized the evidence relating to the charge of criminally negligent homicide and confused the jury by repeatedly using language to suggest that the defendant’s conduct in striking Rodriguez with the vehicle was intentional or reckless. … [T]he prosecutor used language such as “conscious, blameworthy choices,” “knowingly commit blameworthy acts,” “took a risk that took [Rodriguez’s] life,” “you don’t get to knowingly choose to do something wrong,” “[y]ou don’t get to drive over someone because you feel a mother’s memorial is a nuisance,” and, illogically, “[s]he failed to perceive that risk, and she chose to go ahead anyway” … .

The prosecutor continually denigrated the defense, referring to defense theories, repeatedly, as “excuses,” and also as “garbage,” and he falsely and provocatively claimed that the “defense repeatedly argued that the death of Kayla . . . was an inconvenience and a nuisance” … . The prosecutor continually evoked sympathy for Rodriguez using strong emotional terms, such as referring to her, and to her and Cuevas together, numerous times, as “the grieving mother” and the “grieving parents” and referring to Kayla repeatedly as Rodriguez’s “murdered daughter” or “murdered teenage daughter” … .

… [I]n arguing that the defendant engaged in “blameworthy conduct creating or contributing to a substantial and unjustifiable risk” so as to meet the standard of criminally negligent homicide … , the prosecutor, throughout the course of his summation, referred to conduct not relevant to the driving conduct that formed the basis of the criminally negligent homicide charge. Specifically, the prosecutor encouraged the jury to consider the defendant’s actions in removing the memorial, which he recurrently characterized as “blameworthy,” when determining whether the defendant’s conduct was sufficiently blameworthy to constitute criminally negligent homicide. The prosecutor compounded the prejudicial effect of this error by repeatedly using inflammatory and emotional language, and assuming facts not in evidence, to describe the defendant’s conduct of removing the memorial. People v Drago, 2022 NY Slip Op 04561, Second Dept 7-13-22

Practice Point: Even if the errors are not preserved, prosecutorial misconduct during summation may require reversal. The defendant was charged with criminal negligence, yet in summation the prosecutor kept characterizing her conduct as intentional. In addition, the prosecutor denigrated the defense theories, referred to defendant’s conduct which was not relevant to the charge and assumed facts not in evidence.

 

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THE JUDGE HAD BEEN MADE AWARE A WEEK BEFORE THE HEARING THAT MOTHER’S ATTORNEY WAS NO LONGER REPRESENTING HER; AT THE HEARING MOTHER EXPLAINED SHE HAD COMMUNICATED WITH ANOTHER LAWYER WHO COULD NOT ATTEND THAT DAY; MOTHER ASKED FOR AN ADJOURNMENT; THE JUDGE ABUSED HER DISCRETION IN DENYING THE REQUEST (FOURTH DEPT).

The Fourth Department, reversing Family Court in this custody proceeding, determined mother’s request for an adjournment should have been granted. Mother’s relationship with her attorney had broken down. The attorney had notified the judge a week before and the attorney did not appear for the hearing. At the hearing, mother told the judge she had communicated with another lawyer (who had other obligations) and asked for an adjournment. The request denied and mother represented herself:

Approximately one week prior to the hearing on the father’s petition, the mother’s attorney informed Family Court that there had been a breakdown in her attorney-client relationship with the mother, as a result of which she was no longer representing the mother, and she requested an adjournment of the hearing. On the morning of the hearing, the court failed to make any inquiry of the mother concerning the fact that her attorney was not present at the hearing, nor did the court make any mention of the attorney’s adjournment request. The mother herself then sought an adjournment and confirmed to the court that there had been a fundamental breakdown in the relationship with her attorney. The mother explained that she had spoken to, and scheduled a meeting with, a new attorney and that the new attorney could not be present due to a preexisting obligation. …

… [T]he court abused its discretion in denying her request to adjourn the hearing … . The record establishes that the mother’s request was not a delay tactic and did not result from her lack of diligence in retaining new counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing on the petition. Matter of Dupont v Armstrong, 2022 NY Slip Op 04509, Fourth Dept 7-8-22

Practice Point: Here mother had never requested an adjournment before and the judge was aware mother’s relationship with her attorney had broken down. At the time of the hearing mother told the judge she had communicated with another lawyer who could not attend that day and asked for an adjournment. The judge’s denial of the request was an abuse of discretion.

 

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THE PEOPLE DID NOT PRESENT EVIDENCE OF THE TEMPORAL REQUIREMENTS FOR AN ASSESSMENT OF 20 POINTS FOR RISK FACTOR 4 AND DEFENSE COUNSEL AGREED WITH THAT 20-POINT ASSESSMENT, THEREBY WAIVING ANY OBJECTION TO IT ON APPEAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW SORA HEARING ORDERED (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant did not receive effective assistance of counsel at the SORA hearing. The People did not present evidence of defendant’s commission of two or more sexual offenses separated by more than 24 hours or three or more over at least two weeks to justify the relevant 20 point assessment (risk factor 4). Defense counsel agreed to that 20 point assessment. Defense counsel contested a different assessment but that argument was deemed to have no merit. Defendant’s counsel was deemed ineffective and a new SORA hearing was ordered:

… [T]he sole argument advanced by the defendant’s assigned counsel, challenging the assessment of points under risk factor 9, was clearly devoid of merit. Counsel then expressly conceded that the points in all other categories had been properly assessed, even though there was at least a colorable argument to be made that the People had failed to establish that the temporal requirements for the assessment of points under risk factor 4 were satisfied …  Contrary to the People’s contention, it cannot be said that such an argument would have had little or no chance of success. Although the case summary established that the defendant committed multiple offending acts, it did not contain any information as to when these acts occurred relative to each other, and therefore, standing alone, was insufficient to support the assessment of 20 points under risk factor 4 … . Moreover, counsel’s argument regarding risk factor 9, and other statements made by counsel during the hearing, indicated that counsel was not adequately familiar with the applicable law … . In addition, counsel stated that he was seeking a downward departure, but failed to articulate any argument in support of such a departure … . People v Echols, 2022 NY Slip Op 04310, Second Dept 7-6-22

Practice Point: At the SORA risk-level hearing, defense counsel agreed with an assessment of 20 points for risk level 4 despite the People’s failure to submit any evidence in support of it. Because counsel agreed to the assessment, any objection to it was waived and could not be raised on appeal. However, the ineffective-assistance argument, based upon defense counsel’s failure to object to that same 20 point assessment, was properly raised on appeal and was the basis for reversal.

 

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DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION OF THE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA WAS WRONG; MATTER REMITTED FOR A HEARING ON WHETHER THERE IS A REASONABLE POSSIBILITIY DEFENDANT WOULD NOT HAVE PLED GUILTY HAD HE BEEN PROPERLY INFORMED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant demonstrated his attorney gave him the wrong advice about the chances he would be deported based on his guilty plea and sent the matter back for hearing on whether the is a reasonable possibility defendant would not have pled guilty if he had been properly informed:

In support of [defendant’s motion to vacate his conviction], defendant’s attorney on the motion averred that defense counsel had given advice that was consistent with an assumption that the crime that defendant was pleading guilty to was a crime of moral turpitude within the meaning of the Immigration and Nationality Act (INA), for which an immigration judge could grant a cancellation of removal, when in actuality defendant was pleading guilty to an aggravated felony under the INA that would almost certainly result in deportation…. . People v Go, 2022 NY Slip Op 04258, Fourth Dept 7-1-22

Practice Point: Defendant moved to vacate his conviction by guilty plea on ineffective assistance grounds. Defendant demonstrated that his attorney’s explanation of the immigration consequences of the plea was wrong. Therefore County Court should have held a hearing on whether there is a reasonable possibility defendant would not have pled guilty had he been correctly informed.

 

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HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary:

… [W]e agree with defendant that he is entitled to a hearing on whether counsel was ineffective in connection with defendant’s alleged failure to fully cooperate under the terms of the 2016 cooperation agreement. A hearing is required on a CPL article 440 motion “if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” … . In that regard, defendant averred that he consistently gave a truthful account of the burglary and had fully cooperated in the prosecution of [a codefendant] as required by the 2016 cooperation agreement, and his motion papers included a September 2016 supporting deposition from his sister and an affidavit from [his former attorney] to support those claims. Defendant also alleged specific deficiencies in counsel’s performance, namely, that counsel failed to investigate whether the Special Prosecutor’s withdrawal of the 2016 cooperation agreement was impermissibly “premised on bad faith, invidiousness, . . . dishonesty” or unconstitutional considerations and, moreover, failed to discuss the possibility of demanding a hearing on that issue with defendant … . People v Buckley, 2022 NY Slip Op 04197, Third Dept 6-30-22

Practice Point: If a motion to vacate the conviction raises substantive issues which are corroborated in some way (here with an affidavit by defendant’s prior attorney), and these substantive issues are not adequately dealt with in the People’s responding papers, a hearing must be held.

 

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THE EVIDENCE SUPPORTED FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUIRING A “BEST INTERESTS OF THE CHILD” HEARING; THE APPELLATE COURT ORDERED A “BEST INTERESTS” HEARING, INCLUDING A LINCOLN HEARING, AND ORDERED THE APPOINTMENT OF A NEW ATTORNEY FOR THE CHILD BECAUSE THE PRESENT ATTORNEY HAD EXPRESSED AN OPINION ON THE APPROPRIATE CUSTODY ARRANGEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined father had demonstrated a change in circumstances sufficient to support a modification of the custody arrangement. The original custody order provided that the 50/50 custody sharing would change to mother’s having primary custody when the child started school. Father explained that mother’s primary custody was necessary because his work prevented him from taking the child to and from school. However, father had since changed jobs and moved to the school district where the child attended to school. The Third Department ordered a “best interests of the child” hearing, including a Lincoln hearing, and ordered the appointment of a different attorney for the child because the present attorney had expressed an opinion about the appropriate custody arrangement:

“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order” … . According to the father’s petition, the sole reason for the parties’ initial agreement to decrease the father’s parenting time during the school year was because, at the time of the agreement, the father’s work schedule prevented him from transporting the child to and from school. According to the father’s hearing testimony, that circumstance had since changed. The father testified that, while the 50/50 custody arrangement was still in effect, he obtained a new job with a higher salary and more flexible hours, and bought a house in what was at that time the child’s school district, such that the school transportation issue had been alleviated. Matter of Thomas SS. v Alicia TT., 2022 NY Slip Op 04213, Third Dept 6-30-22

Practice Point: This case is an example of evidence which is deemed sufficient to support a modification of custody such that a “best interests of the child” hearing should be held. Here, as part of the “best interests” fact-finding, the Third Department ordered that a Lincoln hearing be held and that a different attorney for the child be appointed because the present attorney had expressed an opinion on custody.

 

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PLAINTIFF SERVED THE COMPLAINT ON NOVEMBER 27, 2018; DEFENDANT ATTEMPTED TO SERVE AN ANSWER, WHICH WAS REJECTED, ON JANUARY 9, 2019; DEFENDANT’S EXCUSE WAS “THE DELAY WAS CAUSED BY THE INSURANCE CARRIER;” THAT EXCUSE WAS INSUFFICIENT AND DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ACCEPT THE ANSWER SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not offer a reasonable excuse for serving a late answer (which was rejected) in this slip and fall case. Therefore, defendant’s motion to compel plaintiff to accept the answer should not have been granted. Defendant was served with the complaint on November 27, 2018, and defendant attempted to serve the answer on January 9, 2019:

The bare allegation by the defendant’s attorney that the delay was caused by the defendant’s insurance carrier is insufficient to excuse the delay in answering the complaint … . The absence of a reasonable excuse for the defendant’s default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense … . Goldstein v Ilaz, 2022 NY Slip Op 04154, Second Dept 6-29-22

Practice Point: Here the defendant attempted to serve an answer, which was rejected, about a month and a half after plaintiff served the complaint. Defendant moved to compel the plaintiff to accept the answer. Defendant’s excuse was that the “delay was caused by the insurance carrier” with no further explanation. The Second Department deemed the excuse insufficient and ruled that the motion to compel acceptance of the answer should not have been granted.

 

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QUESTIONS OF FACT ABOUT WHETHER THE INCAPACITATED PERSON (IP) WAS “INSANE” WITHIN THE MEANING OF THE CPLR WHEN HE WAS REPRESENTED BY THE DEFENDANT ATTORNEY MUST BE DETERMINED AT THE LEGAL MALPRACTICE TRIAL; IF THE IP WAS INSANE, THE MALPRACTICE STATUTE OF LIMITATIONS WILL BE TOLLED; IF NOT THE MALPRACTICE ACTION IS UNTIMELY (FIRST DEPT).

The First Department determined questions about the incapacitated person’s (IP’s) sanity should be part of the legal malpractice trial. If the IP is determined to have been “insane” at the time he was represented by defendant attorney, the statute of limitations for the legal malpractice action would have been tolled, if not, the action was not timely:

The parties do not dispute that [defendant attorney] established prima facie that this action asserting breach of fiduciary duty and related causes of action (the malpractice action) was commenced after the applicable statutes of limitations had expired. However, plaintiff raised an issue of fact whether the statutes of limitations were tolled for “insanity” (… CPLR 208[a]). Viewed in the light most favorable to plaintiff, the record presents issues of fact as to the IP’s ability to protect his legal rights and his overall ability to function in society at the time his claims against [defendant attorney] accrued … . Matter of Verdugo v Smiley & Smiley, LLP, 2022 NY Slip Op 04138, First Dept 6-28-22

Practice Point: There is an “insanity” statute-of -imitations toll in the CPLR. Here there a question of fact whether an incapacitated person was insane when he was represented by defendant attorney such that the legal malpractice statute of limitations was tolled.

 

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THE TRIAL JUDGE PROPERLY TERMINATED DEFENDANT’S SELF-REPRESENTATION DURING THE TRIAL BASED ON DEFENDANT’S BEHAVIOR; THE TRIAL JUDGE PROPERLY DECLINED TO EXCUSE A JUROR WHO, DURING DELIBERATIONS, SAID HE DID NOT WANT TO CONTINUE; DEFENDANT WAS NOT EXCLUDED FROM A MATIERAL STAGE OF THE PROCEEDING WHEN THE TRIAL JUDGE DISCUSSED HIS MENTAL CONDITION WITH COUNSEL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined defendant, who was representing himself at the time, was not deprived of his right to be present at a material stage of the proceeding when the judge, outside defendant’s presence, discussed whether defendant, who apparently was in an agitated state, should be examined by a psychiatrist. Ultimately no examination was ordered. The First Department held the trial judge properly terminated defendant’s self-representation based on his behavior during the trial. In addition, the First Department concluded that a juror who apparently stated he did not wish to continue participating in the deliberations, was not grossly unqualified:

… [T]he record supports a determination that defendant’s conduct prevented the fair and orderly exposition of the issues and was disruptive to the proceedings … . During the examination of the People’s witnesses, defendant was repeatedly told by the court to “calm down,” to not get agitated, to not argue and be combative with the witnesses, and to not argue with the court regarding its rulings. The record also reflects instances where the court explained its rulings to defendant, defendant stated he understood and would then immediately engage in the same conduct. Moreover, during his testimony, the court repeatedly admonished defendant to stop making arguments to the jury. When asked twice by the court to sit down, he refused to do so. Defendant also repeatedly ignored the direction of the court officer to sit down. Instead, defendant remained standing, continued his argument and questioned the court’s ruling. Defendant also made reference to his over one-year period of pretrial detention as well as that he had a teenage son. People v Williams, 2022 NY Slip Op 04135, First Dept 6-28-22

Practice Point: Here defendant’s agitated behavior during the trial was a proper ground for terminating his self-representation. The judge’s discussion with counsel, outside defendant’s presence, of defendant’s mental health was not a material stage of the proceedings. The judge properly refused to exclude a juror who, during deliberations, said he did not want to continue.

 

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HERE, IN THIS FOIL PROCEEDING, THE REQUESTED DOCUMENTS WERE ULTIMATELY PROVIDED AFTER AN INITIAL REFUSAL RENDERING THE ACTION MOOT; THE PETITIONER’S REQUEST FOR AN AWARD OF ATTORNEY’S FEES, HOWEVER, WAS NOT PRECLUDED (THIRD DEPT).

The Third Department determined the award of attorney’s fees for a FOIL request is not precluded when the underlying action is rendered moot because the requested documents were ultimately provided (after an initial refusal):

The fact that the proceeding has been rendered moot by the disclosure of the documents does not … preclude petitioner’s request for an award of fees … .The Public Officers Law permits an award of “reasonable [counsel] fees and other litigation costs” where the petitioner “has substantially prevailed” in a FOIL proceeding and “when the agency failed to respond to a request . . . within the statutory time frame” … . Under the circumstances, as petitioner included in his petition a request for fees associated with the FOIL application, the matter must be remitted to Supreme Court for a determination of an award of costs and fees pursuant to Public Officers Law § 89 (4) (c) (i). Matter of Lewis v James, 2022 NY Slip Op 04066, Third Dept 6-23-22

Practice Point: If a FOIL request, after an initial refusal to provide the requested documents, is rendered moot by the respondent’s ultimately providing the documents, an award of attorney’s fees to the petitioner is not precluded.

 

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