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THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the district attorney could not use the statutes-of-limitations tolls imposed by executive order because of the COVID pandemic to delay responses to FOIL requests:

By its terms, EO [Executive Order] 202.8 tolls legal “process[es] or proceeding[s] as prescribed by the procedural laws of the state” … . The FOIL framework and deadlines for agency responses to requests are not “prescribed by the procedural laws,” such as the CPLR and CPL. In the context of FOIL requests, legal “proceedings” ensue only when parties are unable to agree on a response to a request, and resort to the courts via CPLR article 78 proceedings. The conduct of article 78 proceedings are “prescribed by the procedural laws” of the CPLR. FOIL requests and responses are not so prescribed … .

Hence, respondents’ position that EO 202.8 tolls their obligation to respond to FOIL requests, is erroneous. Matter of Oustatcher v Clark, 2021 NY Slip Op 05295, First Dept 10-5-21

 

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A FRIVOLOUS APPEAL IN THIS DIVORCE PROCEEDING WARRANTED SANCTIONS AGAINST APPELLANT’S ATTORNEY (FOURTH DEPT).

The Fourth Department, determined sanctions against plaintiff’s attorney for bringing a frivolous appeal were in order in this divorce proceeding:

… [W]e consider defendant’s request for costs, attorney’s fees, and sanctions pursuant to 22 NYCRR 130-1.1. We grant defendant’s request in part and award costs in the form of reimbursement by plaintiff’s attorney, Angelo T. Calleri, for actual expenses reasonably incurred and reasonable attorney’s fees resulting from the frivolous conduct of Calleri in prosecuting this appeal … and we remit the matter to Supreme Court to determine such amount … . “[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . We conclude that Calleri’s appellate brief is replete with arguments that qualify as frivolous under the first paragraph of subdivision (c). Indeed, plaintiff’s frivolous request that we impose sanctions against defendant by itself qualifies as frivolous conduct … .  Marshall v Marshall, 2021 NY Slip Op 05194, Fourth Dept 10-1-21

 

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILITY PLEA; THE WAIVER OF APPEAL DID NOT PRECLUDE AN APPEAL ALLEGING THE GUILTY PLEA WAS INVALID (SECOND DEPT).

The Second Department, reversing County Court, over a dissent, determined defendant should have been allowed to withdraw his guilty plea. The court noted that the defendant’s waiver of appeal did not preclude an appeal alleging the guilty plea was not valid:

… [T]he defendant secured new counsel and made a written motion to withdraw his plea a little more than four months after he pleaded guilty. The County Court denied the defendant’s motion, without a hearing or any further inquiry into the defendant’s claims. At the subsequent sentencing proceeding, the defendant again asserted his innocence and again asked the court to permit him to withdraw his plea based on his attorneys’ failure to provide meaningful representation. The defendant’s application to withdraw his plea at the sentencing proceeding was based on his statements to the court and his prior evidentiary submissions, which tended to substantiate his contention that he had not understood the concept of constructive possession or the nature of the People’s evidence at the time that he pleaded guilty. These submissions were sufficient to cast doubt on his guilt and the validity of his plea … . The People did not allege any prejudice that would have resulted had the court permitted the defendant to withdraw his plea of guilty at that time … . People v Gerald, 2021 NY Slip Op 05130, Second Dept 9-29-21

 

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SUPREME COURT SHOULD HAVE CONDUCTED AN INQUIRY TO ENSURE DEFENDANT INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL AFTER HIS ATTORNEY WAS PERMITTED TO WITHDRAW; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined the court did not make sure defendant intelligently waived his right to counsel after his attorney was permitted to withdraw:

A divorce litigant has a statutory right to counsel for the custody portion of the litigation (see Family Ct Act § 262[a][iii], [v]; Judiciary Law § 35[8]). Here, the defendant’s attorney was permitted to withdraw during the trial, and the defendant proceeded pro se. However, the Supreme Court did not determine whether the defendant was unequivocally, voluntarily, and intelligently waiving his right to counsel … and failed to inquire whether the defendant understood the risks and disadvantages of appearing pro se. … [W]e … remit the matter … for a new trial … . At that time, the court should conduct a more detailed inquiry to determine whether the defendant is eligible for assigned counsel. Brandel v Brandel, 2021 NY Slip Op 05116, Second Dept 9-29-21

 

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PLAINTIFF ATTORNEY’S QUANTUM MERUIT ACTION FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT IT WAS PRECLUDED BY A WRITTEN CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff-attorney’s quantum meruit action for legal services should not have been dismissed. The evidence did not demonstrate the existence of a written contract (which would preclude the quantum meruit action):

“In order to succeed on a cause of action to recover in quantum meruit, the plaintiff must prove (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … . Recovery under the theory of quantum meruit is not appropriate where an express contract governs the subject matter involved … .

“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound” … . “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . Gould v Decolator, Cohen & DiPrisco, LLP, 2021 NY Slip Op 05026, Second Dept 9-22-21

 

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APPELLATE COUNSEL SHOULD HAVE ARGUED THAT COUNTY COURT FAILED TO CONSIDER A YOUTHFUL OFFENDER ADJUDICATION; WRIT OF ERROR CORAM NOBIS GRANTED AND MATTER REMITTED (SECOND DEPT).

The Second Department granted the writ of error coram nobis and remitted the matter. Appellate counsel should have raised the argument that County Court failed to consider whether defendant should be adjudicated a youthful offender:

… [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 County 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), 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 … . Although we acknowledge that the Court of Appeals decided Rudolph only shortly before former appellate counsel filed the brief on the appeal, because the holding in Rudolph compels vacatur of the sentence, the standard of meaningful representation required former appellate counsel 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 Slide, 2021 NY Slip Op 04982, Second Dept 9-15-21

 

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NEITHER PARTY WAS THE “PREVAILING PARTY” IN THIS DISPUTE OVER THE CARE OF THE PARTIES’ INCAPACITATED FATHER; THEREFORE NEITHER PARTY WAS ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE SETTLEMENT AGREEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined neither party in this dispute over care for an incapacitated person (the parties’ father) was a “prevailing party” and therefore neither of the two sons, Michael and Stephen, was entitled to an award of attorney’s fees:

Following an evidentiary hearing, … the Supreme Court denied Michael’s request to remove Stephen as Milton’s [father’s] attorney-in-fact and health care agent. However, the court determined that Stephen breached the settlement agreement by refusing to mediate. The court also granted that branch of Michael’s motion which was for an award of attorney’s fees pursuant to the settlement agreement’s fee shifting provision. …

 “Under the general rule, attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” … . “‘[O]nly a prevailing party is entitled to recover an attorney’s fee’ and ‘[t]o be considered a prevailing party, a party must be successful with respect to the central relief sought'” … . “Such a determination requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope” … . Matter of Milton R., 2021 NY Slip Op 04975, Second Dept 9-15-21

 

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GENERAL CRITERIA FOR DENYING, WITHOUT HOLDING A HEARING, A MOTION TO VACATE A CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS (CT APP).

The Court of Appeals, without discussing the facts, laid out the criteria for denying a motion to vacate a conviction on ineffective-assistance grounds without holding a hearing:

… [A] court may deny a CPL 440.10 motion without conducting a hearing if “[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts” … . Here, County Court did not abuse its discretion in denying defendant’s CPL 440.10 motion without a hearing because, under the circumstances presented, defendant failed to sufficiently allege “‘a reasonable probability that, but for counsel’s [alleged] errors, he would not have pleaded guilty and would have insisted on going to trial'” … . Moreover, defendant failed to otherwise “show that the nonrecord facts sought to be established . . . would entitle him to relief” … . People v Dogan, 2021 NY Slip Op 04956, CtApp 9-14-21

 

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A PSYCHIATRIC EXAM IS A CRITICAL STAGE OF A PROSECUTION AT WHICH DEFENDANT HAS THE RIGHT TO COUNSEL; THE EXCLUSION OF DEFENSE COUNSEL FROM THE EXAM WAS NOT HARMLESS ERROR; CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing defendant’s manslaughter conviction, determined the exclusion of defense counsel from the psychiatric exam by the People’s expert was not harmless error:

After defendant provided timely notice that he intended to present psychiatric evidence at trial, he was twice interviewed by a clinical psychologist engaged by the People (see CPL 250.10 [2], [3]). Although defense counsel was present at the first examination, the expert denied defense counsel admittance to the second examination. Over defense counsel’s objection that defendant’s right to counsel had been violated, the expert’s testimony was admitted at trial. On defendant’s appeal, the Appellate Division affirmed, holding that defendant’s constitutional right to counsel had been violated but that the error was harmless … . …

In Matter of Lee v County Ct. of Erie County (27 NY2d 432 [1971]), we held that defendants’ Sixth Amendment right to counsel applies at pre-trial psychiatric examinations “to make more effective [a defendant’s] basic right of cross-examination” … In Lee, we cited to United States v Wade’s (388 US 218 [1967]) definition of a critical stage of the prosecution as “‘any stage of the prosecution, formal or informal, in court or out, where’ ‘the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself'” … . We thus held that pretrial psychiatric examinations are a critical stage of the prosecution.

… The People—not the defendant—bear the burden of showing that “there was no reasonable possibility that the trial court’s admission” of that part of the expert’s testimony based on the uncounseled examination “affected the jury’s verdict” … . Under the circumstances of this case, the expert’s testimony at trial was based in part on the examination undertaken in violation of defendant’s constitutional right to counsel, and we cannot say that the error was harmless … . People v Guevara, 2021 NY Slip Op 04955, CtApp 9-9-21

 

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EVEN THOUGH DEFENDANT WAS A DISBARRED ATTORNEY, THE TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO MAKE SURE THE DEFENDANT UNDERSTOOD THE RISKS OF REPRESENTING HIMSELF; CONVICTIONS REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should have ensured defendant knew the risks of conducting the trial pro se before allowing defendant, a disbarred attorney, to represent himself:

A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . In order to make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . Nonetheless, no specific litany is required and a reviewing court may look to the whole record, not simply to the questions asked and answers given during a waiver colloquy, in order to determine whether a defendant actually understood the dangers of self-representation … . Subsequent warnings, however, cannot cure a trial court’s earlier error in not directing the defendant’s attention to the dangers and disadvantages of self-representation … .

Here, although the record demonstrates that the Supreme Court was aware of the defendant’s pedigree information, including his status as a disbarred attorney, the court failed to ascertain that the defendant was aware of the risks inherent in proceeding without a trial attorney and the benefits of having counsel represent him at trial … . Contrary to the People’s contention, there is nothing in the record that demonstrates that the dangers and disadvantages of self-representation were known by the defendant … , as the court neither “tested defendant’s understanding of choosing self-representation nor provided a reliable basis for appellate review” … . People v Crispino, 2021 NY Slip Op 04918, Second Dept 9-1-21

 

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