Attorneys – Page 38 – New York Appellate Digest

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MAKE A MOTION FOR A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL ASSESSMENT PROCEEDING (SECOND DEPT).

The Second Department, reversing the level three SORA risk assessment, determined defense counsel was ineffective for failing to make a motion for a downward departure. The only arguments defense counsel made were without merit, demonstrated a lack of understanding of the facts, and would not have reduced the risk assessment to level two even if successful:

… [C]ounsel only challenged 35 of the 155 total points assessed against the defendant, and a resulting score of 120 would have still been within the range (between 110 and 300 points) of a presumptive level three (high) offender. Counsel did not seek a downward departure from the defendant’s presumptive risk level designation as a level three sex offender, and the record supports the defendant’s claim that his counsel failed to articulate any argument that would have had any effect on the outcome of the SORA proceeding … . … [T]he record does not demonstrate that counsel made a “strategic decision to attack the assessment of points, while foregoing any request for a downward departure.” Any such strategy in this case “would have made no sense” because it would not have had any effect on the outcome of the SORA proceeding … . Counsel’s failure to make any application for a downward departure, under the particular circumstances of this case, worked to deprive the defendant of his right to zealous advocacy, and amounted to less than meaningful representation … . People v Morancis, 2022 NY Slip Op 00202, Second Dept 1-12-22

January 12, 2022

Attorneys, Civil Rights Law, Defamation, Privilege

THE PRIVILEGE AFFORDED ATTORNEYS UNDER THE CIVIL RIGHTS LAW RE: ALLEGEDLY DEFAMATORY CLAIMS INCLUDED IN A COMPLAINT (WITH ONE EXCEPTION NOT APPLICABLE HERE) IS ABSOLUTE, EVEN IN THE FACE OF ALLEGATIONS OF MALICE AND BAD FAITH (FIRST DEPT).

The First Department determined the allegedly defamatory claims included in a complaint against plaintiff were absolutely privileged with respect to the attorneys who drafted the complaint.

… [T]here is no evidence to support a claim that defendant attorneys acted with malice against plaintiff, either in the commencement of this case or in the preparation of the papers as well as any dissemination of the papers, which are for public consumption to a reporter. … [T]here are no … issues of fact as to whether defendant attorneys instituted and sought to publicize a “sham” action containing defamatory allegations against plaintiff for the sole or primary purpose of disseminating those defamatory allegations while cloaking them in the privilege that attends certain statements made in connection with proceedings before a court (see Williams v Williams, 23 NY2d 592, 599 [1969]). …

In the absence of alleged facts supporting the Williams exception, the privilege under Civil Rights Law § 74 is absolute and applies even where the plaintiff alleges malice or bad faith … . Weeden v Lukezic, 2022 NY Slip Op 00026, First Dept 1-4-22

January 4, 2022

Attorneys, Civil Procedure, Family Law

PETITIONER’S WAIVER OF HER RIGHT TO COUNSEL IN THIS FAMILY COURT ACT ARTICLE 8 PROCEEDING WAS NOT DEMONSTRATED TO HAVE BEEN VOLUNTARY; THE COURT SHOULD HAVE HELD A HEARING ON WHETHER THE RESPONDENT AND PETITIONER HAD BEEN IN AN INTIMATE RELATIONSHIP (THEREBY AFFORDING THE COURT SUBJECT MATTER JURISDICTION) (SECOND DEPT).

The Second Department, reversing Family Court in this Family Court Act article 8 proceeding, determined; (1) petitioner’s waiver of her right to counsel was invalid, and (2) the finding that petitioner did not have an intimate relationship with respondent, thereby depriving the court of subject matter jurisdiction, was not supported by the record:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii] … ). Although the right to counsel may be waived, the waiver must be knowing, voluntary, and intelligent … . In order to ensure that a waiver is made knowingly, voluntarily, and intelligently, the court “must conduct a searching inquiry” … and the record must reflect, among other things, “that the party was aware of the dangers and disadvantages of self-representation” … .

Here, the Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary … . …

The Family Court also should have conducted a hearing prior to determining that it lacked subject matter jurisdiction on the ground that the parties did not have an intimate relationship within the meaning of Family Court Act § 812(1)(e) … . Matter of Minor v Birkenmeyer, 2021 NY Slip Op 07546, Second Dept 12-29-21

December 29, 2021

Attorneys, Trusts and Estates

PLAINTIFF’S MOTION TO COMPEL THE DEFENDANT ESTATE TO HIRE AN ATTORNEY OR BE DEEMED IN DEFAULT SHOULD HAVE BEEN GRANTED; WHERE THERE ARE CLAIMS AGAINST AN ESTATE, THE ESTATE CANNOT REPRESENT ITSELF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion to require the defendant executor of the estate to hire an attorney for the estate or be deemed in default should have been granted. An estate cannot represent itself:

… [T]he motion court should have granted plaintiffs’ motion seeking to require Madden to retain licensed counsel to represent the estate. Although CPLR 321(a) does not address whether an estate is permitted to represent itself, courts have concluded that, in matters involving claims brought against an estate, estate representatives cannot act pro se because their own individual liberty or property interests are not involved. Rather, the interests belong to the estate beneficiaries … . Alaina Simone Inc. v Madden, 2021 NY Slip Op 07497, First Dept 12-28-21

December 28, 2021

Attorneys, Civil Procedure, Human Rights Law, Intentional Infliction of Emotional Distress

PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY ALLEGED GENDER DISCRIMINATION AND INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT-ATTORNEY’S WITHHOLDING REQUESTED LEGAL SERVICES AND ENGAGING IN SEXUAL HARASSMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s complaint against the defaulting attorney-defendant should not have been dismissed. Plaintiff alleged defendant attorney discriminated against her by depriving her of the legal services she sought in connection with a sexual assault. Plaintiff alleged she was sexually harassed by defendant attorney. The matter was sent back to determine damages:

“[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” … . “Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action,” but the standard of proof is “minimal,” “not stringent” … .

… [P]laintiff averred that defendant … used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. …

Plaintiff established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant … discriminated against plaintiff based on her gender … . [P]laintiff also made a prima facie showing that defendant[‘s] … discriminatory behavior violated the City HRL … . [P]laintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant … engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress … . Petty v Law Off. of Robert P. Santoriella, P.C., 2021 NY Slip Op 07527, First Dept 12-28-21

December 28, 2021

Attorneys, Contract Law

DEFENDANT-ATTORNEY DEMONSTRATED THE RETAINER AGREEMENT IN THE DRUNK-DRIVING AND VEHICULAR HOMICIDE CASE WAS NOT PROCEDURALLY UNCONSCIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-attorney’s motion for summary judgment on the “unconscionable retainer agreement” cause of action should have been granted:

… [D]efendant met his initial burden on the motion by establishing that the retainer agreement is not procedurally unconscionable. Plaintiff’s deposition testimony, which defendant submitted in support of the motion, demonstrated that plaintiff had ample opportunity to become fully informed about the retainer agreement and to make a meaningful choice about representation. Plaintiff did not dispute in his deposition that, as defendant averred, defendant previously represented plaintiff in relation to a charge of driving while intoxicated for which a similar fixed-fee retainer agreement was used. Indeed, plaintiff admitted that defendant previously represented him at least once. Defendant’s submissions on the motion also established that the retainer agreement here was not presented to plaintiff until nine days after the drunk-driving incident giving rise to the criminal charges against him and several days after plaintiff had been released from the hospital. By that time, plaintiff had been arraigned on the felony complaint, and therefore was aware of the charges of aggravated vehicular homicide against him for the deaths of two persons. Before signing the retainer agreement, plaintiff’s family had contacted at least one other attorney on plaintiff’s behalf, and plaintiff negotiated terms of the agreement with defendant. Furthermore, although defendant submitted plaintiff’s interrogatory answers in which plaintiff stated that he relied on defendant’s statements that defendant had never had a client go to prison and that he would work on plaintiff’s case “24/7,” plaintiff conceded during his deposition that defendant never guaranteed that he would avoid prison and that plaintiff understood defendant’s statements regarding the amount of time defendant would spend on plaintiff’s case to be hyperbole. Divito v Fiandach, 2021 NY Slip Op 07350, Fourth Dept 12-23-21

December 23, 2021

Appeals, Attorneys, Criminal Law

DEFENDANT’S FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE DEFENDANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE TIME-BARRED ENDANGERING-THE-WELFARE-OF-A-CHILD COUNTS; WRIT OF CORAM NOBIS GRANTED (SECOND DEPT).

The Second Department determined defendant’s former appellate counsel was ineffective for not arguing defendant’s trial counsel was ineffective for failing to move to dismiss the misdemeanor endangering-the-welfare-of-child charges were time-barred. Therefore the writ of coram nobis was granted and the relevant counts were vacated:

The misdemeanors of which the defendant was convicted, two counts of endangering the welfare of a child, were barred by the statute of limitations. The defendant demonstrated that trial counsel was not seeking a compromise verdict from the jury and thus did not have a strategic reason for failing to move to dismiss the misdemeanor counts as time-barred. The two counts of endangering the welfare of a child were not lesser included offenses of the rape and burglary counts of which the defendant was also convicted. Further, when the Supreme Court told counsel that it was “not going to charge everything,” trial counsel did not request that the misdemeanors be submitted to the jury, and replied that the jury would “either believe that my client is a rapist, or not.” Then, during his summation, trial counsel’s sole argument was that the defendant was misidentified. There was no reasonable explanation for trial counsel’s “failure to raise a defense as clear-cut and completely dispositive as a statute of limitations” … . People v Louis, 2021 NY Slip Op 07307, Second Dept 12-22-21

December 22, 2021

Attorneys, Civil Procedure, Privilege

SILENCE DOES NOT CONSTITUTE WAIVER; HERE THE NONPARTY DID NOT EXPRESSLY WAIVE THE COMMON INTEREST, WORK PRODUCT OR TRIAL PREPARATION PRIVILEGES WITH RESPECT TO SUBPOENAED DOCUMENTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined silence did not constitute waiver of common interest, work product or trial preparation privileges with respect to subpoenaed documents:

“Waiver is an intentional relinquishment of a known right and should not be lightly presumed” … . Accordingly, waiver should not be found absent “evidence from which a clear manifestation of intent . . . to relinquish [the right in question] could be reasonably inferred” … . Waiver “will . . . [not] be implied unless the opposite party is misled to his or her prejudice into the belief that a waiver was intended” … ; hence, a finding of waiver cannot be based upon “mere silence or oversight,” or upon “mistake, negligence or thoughtlessness” … . The burden of proving waiver rests with the party asserting it … . * * *

… [I]t is not alleged that appellant or his counsel expressly orally waived the privilege claims at issue, nor does the record reflect that appellant engaged in any gamesmanship with respect to his privilege claims or that he ever “misled [defendants-respondents] to [their] prejudice into the belief that a waiver was intended” … . Homapour v Harounian, 2021 NY Slip Op 07080, First Dept 12-21-21

December 21, 2021

Appeals, Attorneys, Criminal Law

THE ELICITATION OF TESTIMONY FROM A DETECTIVE THAT DEFENDANT INVOKED HIS RIGHT TO COUNSEL AND HIS RIGHT AGAINST SELF-INCRIMINATION WAS SUBJECT TO A HARMLESS ERROR ANALYSIS AND DID NOT REQUIRE REVERSAL; THE DISSENT ARGUED THE ABSENCE OF A CURATIVE INSTRUCTION RENDERED THE ERROR REVERSIBLE (THIRD DEPT).

The Third Department determined the People’s improper elicitation of a detective’s testimony that defendant invoked his right to counsel and his right against self-incrimination was subject to a harmless error analysis and did not require reversal. The dissent disagreed:

A defendant’s invocation of his or her right against self-incrimination and/or his or her right to counsel during a custodial interrogation may not be used against him or her as part of the People’s case-in-chief … . This is because such evidence “creates a prejudicial inference of consciousness of guilt” … . However, the People’s improper elicitation of the prejudicial evidence does not automatically result in a reversal of the judgment of conviction, even in the absence of a curative instruction or in the face of a deficient curative instruction … . Rather, any such constitutional error is subject to a harmless error analysis … . * * *

From the dissent:

The majority would have this Court engage in a harmless error analysis, whereas I would follow this Court’s articulation in People v Knowles (42 AD3d at 665), rejecting such an analysis if the trial court fails to provide “prompt and emphatic curative instructions that the jury may not draw any adverse inferences from [the] defendant’s request for counsel.” As County Court failed to do so here, defendant’s conviction should be reversed. People v Serrano, 2021 NY Slip Op 07037, Third Dept 12-16-21

December 16, 2021

Attorneys, Criminal Law

DESPITE DEFENSE COUNSEL’S ADMISSION BEFORE THE MOTION COURT THAT HE DID NOT PROPERLY INVESTIGATE THIS MURDER CASE, DEFENDANT DID NOT DEMONSTRATE THAT COUNSEL WAS INEFFECTIVE OR THAT THE ALLEGED INEFFECTIVENESS MET THE CRITERIA FOR A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant did not demonstrate his attorney provided ineffective assistance, despite the attorney’s statements to the trial court acknowledging his failure to timely investigate the case, which led to his request to file a late alibi notice (the request was granted). The defendant told the trial court he did not want to change attorneys. And the trial court appointed a co-counsel. The First Department also rejected the unusual argument that defense counsel’s ineffectiveness constituted a conflict of interest:

… [D]efendant has not shown how defense counsel’s performance deprived him of a fair trial. Defense counsel’s self-proclaimed failures to properly investigate and prepare this murder case for trial are disturbing. Nevertheless, defendant has not shown that counsel’s lapses deprived him of any useful information or negatively impacted his ability to mount a defense. Defendant only speculates that a proper investigation and trial preparation might have yielded something helpful to the defense, but he does not suggest what that exculpatory information might be … . …

Defendant concedes that the conflict here is “not typical” as it is “derived from and centered on [defense counsel’s] ineffectiveness.” … Defendant argues that the conflict occurred when his counsel refused to withdraw from representation for personal reasons, despite conceding that he did not effectively investigate the case and prepare for trial. However, defendant cannot “demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest” … . After defense counsel declined to withdraw and defendant noted that he wished to proceed with counsel, the motion court appointed cocounsel to assist the defense … . … [T]he defense was not affected by operation of the conflict because after defense counsel declined to withdraw, defense counsel and cocounsel effectively represented defendant at trial. People v Graham, 2021 NY Slip Op 07068, First Dept 12-16-21