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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

 

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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

 

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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

 

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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

 

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SUPREME COURT SHOULD NOT HAVE ORDERED DEFENDANT TO PAY PLAINTIFF’S ATTORNEY’S FEES AS A SANCTION FOR FRIVOLOUS CONDUCT BECAUSE THE CONDUCT DID NOT OCCUR WITHIN THE PROCEEDINGS BEFORE THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant (Hudes) in this dispute over an easement should not have been sanctioned by ordering him to pay plaintiff’s attorney’s fees for “frivolous conduct.” The facts were not described. The sanction was inappropriate because the behavior which triggered it did not occur within the proceeding before the court:

Courts have discretion to award costs or impose financial sanctions against a party or attorney in a civil action for engaging in frivolous conduct (see 22 NYCRR 130-1.1[a], [b]). Conduct may be deemed frivolous if it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” or “asserts material factual statements that are false”… . However, the scope of the rule is limited to frivolous conduct in the proceeding before the court, and does not extend to “tortious conduct in general” … .

Here, the Supreme Court erred in awarding the plaintiff attorneys’ fees against Hudes personally, since Hudes’ misconduct did not occur within the proceeding before the court and, therefore, was not “frivolous” within the meaning of 22 NYCRR 130-1.1 … . Industry LIC Condominium v Hudes, 2021 NY Slip Op 06836, Second Dept 12-8-21

 

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SUPREME COURT SHOULD HAVE ACCEPTED PLAINTIFF’S LAW-OFFICE-FAILURE EXCUSE FOR LATE SUBMISSION OF PAPERS OPPOSING DFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a default judgment, based upon law office failure, should have been granted:

… [T]he defendant moved for summary judgment dismissing the complaint. That motion was initially returnable on October 20, 2016, but the return date was adjourned to December 8, 2016, with opposition papers to be served by November 21, 2016. The plaintiff served opposition to the motion on or about November 28, 2016 … . In an order entered February 2, 2017, the Supreme Court granted the defendant’s motion for summary judgment. …

… [G]iven the totality of all relevant factors, including the delay of only approximately seven days from the due date for opposition papers to the time the plaintiff served opposition papers, the lack of any evidence of willfulness by the plaintiff, or prejudice to the defendant from the delay, and the strong public policy in favor of resolving cases on the merits, the Supreme Court improvidently exercised its discretion in not accepting the plaintiff’s excuse of law office failure … . … [T]he plaintiff demonstrated that he had a potentially meritorious opposition to the defendant’s motion for summary judgment. Stango v Byrnes, 2021 NY Slip Op 06877, Second Dept 12-8-21

 

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PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined petitioner in this FOIL proceeding “substantially prevailed” and was therefore entitled to attorney’s fees:

Upon petitioner’s FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, respondents, relying on Public Officers Law § 87(2)(d) among other sections of the statute, produced only the manual’s cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual’s developer to release the rest of the manual. After petitioner commenced this article 78 proceeding, however, respondents produced the rest of the manual in unredacted form, except for the appendices, with their response to the petition. Under these circumstances, petitioner substantially prevailed within the meaning of Public Officers Law § 89(4)(c) … .

… [R]espondents have not established that they had a “reasonable basis” for withholding production under Public Officers Law § 87(2)(d). Respondents concede that they sought permission from the manual’s developer to release the information only after receiving the article 78 petition, suggesting that the disclosure was prompted solely by petitioner’s resort to litigation and that respondents could have sought permission in response to the FOIL request itself. This fact militates against a finding that the agency had a “reasonable basis” for withholding production … . Matter of Jaskaran v City of New York, 2021 NY Slip Op 06762, First Dept 12-2-21

 

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APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO FILE AN AMENDED BRIEF OR A SUPPLEMENTAL BRIEF AFTER THE COURT OF APPEALS RULED SENTENCING COURTS MUST CONSIDER YOUTHFUL OFFENDER STATUS FOR ALL WHO ARE ELIGIBLE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined appellate counsel was ineffective and granted a writ of coram nobis. Appellate counsel did not raise the sentencing court’s failure to consider defendant’s eligibility for a youthful offender adjudication. Although the controlling case was decided after the appellate brief was filed, appellate counsel should have amended the brief or submitted a supplemental brief:

… [W]e grant the defendant’s application for a writ of error coram nobis, based on former appellate counsel’s failure to contend on appeal that the Supreme Court failed to determine whether the defendant should be afforded youthful offender status. As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501), 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, the record does not demonstrate that the court considered whether to adjudicate the defendant a youthful offender, even though the defendant was eligible … . We acknowledge that the Court of Appeals decided Rudolph shortly after former appellate counsel filed the brief on the appeal. However, under the circumstances of this case, after Rudolph was decided, the standard of meaningful representation required former appellate counsel to seek to amend the brief or file a supplemental brief in order to argue that, pursuant to Rudolph, the sentence must be vacated and the matter remitted for determination of the defendant’s youthful offender status … . People v Downing, 2021 NY Slip Op 06698, Second Dept 12-1-21

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR “GENDER-BIASED VERBAL ASSAULT, BATTERY AND HARASSMENT, CIVIL RIGHTS LAW 79-N” AGAINST HER FORMER ATTORNEY; THE THREE-YEAR STATUTE OF LIMITATIONS PURSUANT TO CPLR 214(2) APPLIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark addressing several issues not summarized here, determined the complaint stated a cause of action for “gender-biased verbal assault, battery and harassment, Civil Rights Law 79-n” and the three-year statute of limitations applied to that cause of action. The lawsuit was brought by a former client against her former attorney, Benjamin:

In her third cause of action, labeled “Gender-Biased Verbal Assault, Battery and Harassment, Civil Rights Law § 79-n,” plaintiff alleges that Benjamin repeatedly subjected her to “cruel, unprovoked and unjustified verbal abuse, assault, battery and harassment,” that such conduct was “motivated, at least in part, by” Benjamin’s bias toward women, that Benjamin “regularly and consistently conducts himself in the same or similar manner toward” women and that plaintiff has suffered, among other things, physical harm as a result of Benjamin’s bias-related conduct. Although plaintiff does not specifically detail Benjamin’s bias-related conduct within the third cause of action, the facts alleged earlier in the complaint, which are incorporated by reference under the third cause of action, are replete with allegations that Benjamin forcibly subjected plaintiff to nonconsensual sexual contact, including one occasion when Benjamin forced plaintiff to perform oral sex on him and at least two occasions when he forcibly touched plaintiff’s genitals. In our view, the allegations of forcible, nonconsensual contact, together with plaintiff’s allegation that such conduct was motivated by Benjamin’s gender bias, could, if proven, demonstrate the bias-related violence or intimidation required to recover under Civil Rights Law § 79-n … . * * *

… [A]lthough plaintiff’s third cause of action is akin to common-law assault and battery claims, plaintiff’s claim of bias-related violence or intimidation would not exist but for Civil Rights Law § 79-n (2). To recover under common-law assault and battery causes of action, plaintiff would simply need to prove that defendants intentionally placed her “in apprehension of imminent harmful or offensive contact” and “intentionally engage[d] in offensive bodily contact without [her] consent” … . In contrast, to recover for Benjamin’s alleged forcible, nonconsensual sexual contact under Civil Rights Law § 79-n (2), plaintiff has to demonstrate that Benjamin intentionally selected her for harm or intentionally caused her physical injury in whole or in substantial part because of a belief or perception regarding her gender and that there was “actual or imminent physical harm” as a result of the gender bias-related violence or intimidation … . Given the substantive differences between claims asserted under Civil Rights Law § 79-n and common-law assault and battery claims, we are convinced that Civil Rights Law § 79-n (2) creates liability that would not exist but for the statute and that therefore the three-year statute of limitations period in CPLR 214 (2) applies to plaintiff’s third cause of action … . A.M.P. v Benjamin, 2021 NY Slip Op 06589, Third Dept 11-24-21

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY IN THIS FOIL PROCEEDING; RESPONDENT HAD AGREED TO ALLOW PETITIONER TO VIEW THE ELECTRONIC FILES USING ITS VIEWING PROGRAM, BUT HAD DENIED, FOR NO GOOD REASON, PETITIONER’S REQUEST TO TRANSFER THE FILES TO A FLASH DRIVE (THIRD DEPT).

The Third Department determined petitioner was entitled to attorney’s fees because petitioner substantially prevailed on certain requests for documents after commencing an Article 78 proceeding. With respect to one of the requests, although respondent had agreed to allow petitioner to view the requested electronic files using respondent’s viewing program, respondent, without good reason, denied petitioner’s request to place the files on a flash drive:

We agree with petitioner that Supreme Court erred in denying its request for counsel fees. As relevant here, a court in a FOIL proceeding “shall assess, against such agency involved, reasonable [counsel] fees and other litigation costs . . . in any case . . . in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access” to the records sought … . “‘A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation'” … .

Petitioner substantially prevailed in the litigation. Through use of the judicial process, petitioner received documents responsive to demand Nos. 2-5 in the medium it desired and obtained a certification under demand Nos. 6-8 pertaining to multifamily homes … . Contrary to Supreme Court’s finding, the fact that the disclosure under demand Nos. 2-5 stemmed from a mutual accord between the parties does not change the analysis, as “the voluntariness of an agency’s disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed” … . Moreover, respondent did not have a reasonable basis for the precommencement denial of the records responsive to demand Nos. 2-5, as evidenced by its subsequent production of said documents in electronic form. Matter of Aron Law PLLC v Town of Fallsburg, 2021 NY Slip Op 06593, Third Dept 11-24-21

 

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