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AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT PRESENTED SEVERAL WITNESSES WHO SUPPORTED HIS ALIBI DEFENSE; DEFENSE COUNSEL HAD BEEN MADE AWARE OF THE WITNESSES BUT FAILED TO INVESTIGATE; THERE CAN BE NO STRATEGIC JUSTIFICATION FOR SUCH A FAILURE; DEFENDANT’S CONVICTION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective of counsel should have granted. Although defendant did not demonstrate “actual innocence,” the defendant presented several witnesses who testified defendant had left the party before the shooting and defendant’s hair was short, not braided, at the time of the shooting. The perpetrator was described as having braids:

Although a defendant claiming ineffective representation “bears the ultimate burden of showing . . . the absence of strategic or other legitimate explanations for counsel’s challenged actions” … , “[i]t simply cannot be said that a total failure to investigate the facts of a case, or review pertinent records, constitutes a trial strategy resulting in meaningful representation” … . Here, the failure by the defendant’s trial counsel to contact and interview these witnesses cannot be characterized as a legitimate strategic decision since, without collecting that information, counsel could not make an informed decision as to whether the witnesses’ evidence might be helpful at trial … . The fact that some of these witnesses had criminal records does not excuse trial counsel’s failure to investigate since a witness’s “‘unsavory background[ ]’ does not render his or her ‘testimony incredible as a matter of law,'” particularly since the People regularly rely on witnesses with criminal backgrounds, and did so in this case … . Moreover, even if the witnesses’ criminal records provided a strategic basis for choosing not to present their testimony, it does not provide an excuse for counsel’s failure to investigate them as possible witnesses … . People v Davis, 2021 NY Slip Op 02408, Second Dept 4-21-21

 

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THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the children did not have standing to participate in the litigation of financial matters of their parents’ divorce, including the litigation concerning whether the prenuptial agreement should be set aside. Therefore the attorney for the child (AFC) did not have the authority to make a motion regarding the prenuptial agreement:

Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions … , children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.

Moreover, while “children’s attorneys are expected to participate fully in proceedings in which they are appointed” … , such participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents , they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249). Mahadeo v Mahadeo, 2021 NY Slip Op 02286, Second Dept 4-14-21

 

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PLAINTIFF COMMENCED A MALPRACTICE ACTION AGAINST DEFENDANT ATTORNEYS; THE ATTORNEYS COMMENCED AN ARBITRATION PROCEEDING AGAINST PLAINTIFF, BASED ON THE RETAINER AGREEMENT, FOR UNPAID ATTORNEY’S FEES; BOTH THE ARBITRABLE FEE DISPUTE AND THE NONARBITRABLE MALPRACTICE ACTION ARE SUBJECT TO ARBITRATION WHILE THE MALPRACTICE ACTION IS STAYED (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the retainer agreement which required arbitration of any attorney’s-fee dispute, which was entwined in the plaintiff’s malpractice action against the attorneys, required that both the arbitrable fee dispute and the nonarbitrable malpractice action be addressed in the arbitration:

There is no dispute that there is a valid agreement between the parties to arbitrate any dispute regarding unpaid fees. Thus, the court must compel arbitration of defendants’ claim for unpaid fees and stay this action pending completion of the arbitration (CPLR 7503[a]). Moreover, because plaintiff’s nonarbitrable malpractice claim is inextricably intertwined with the arbitrable claim for unpaid fees, the proper course is to stay the action pending completion of the arbitration … . …

To the extent plaintiff argues that it cannot be forced to arbitrate its malpractice claim because it did not explicitly agree to do so, both the First and Second Departments have clearly found that a nonarbitrable issue can be decided in an arbitration when it is inextricably intertwined with an arbitrable issue, particularly where, as here, the determination of the arbitrable unpaid fees claim may dispose of the nonarbitrable malpractice claim … . Protostorm, Inc. v Foley & Lardner LLP, 2021 NY Slip Op 02227, First Dept 4-8-21

 

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DEFENDANT DEMONSTRATED (1) HE WAS MISADVISED THAT HIS GUILTY PLEA WOULD NOT RESULT IN DEPORTATION AND (2), HAD HE BEEN PROPERLY ADVISED, A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court’s granting of defendant’s motion to vacate his conviction, determined defendant had demonstrated at the hearing he was misadvised that the contempt charge to which he pled guilty was not a deportable offense and that he would not have pled guilty but for that misadvice:

… [T]he record supported the Supreme Court’s determination that there was a reasonable probability that but for counsel’s misadvice, the defendant would not have pleaded guilty to criminal contempt in the second degree … . While the defendant did not testify at the hearing, defense counsel and the defendant’s former immigration counsel both testified to his being focused on the immigration consequences of his plea and his determination to plead guilty only after being incorrectly advised that a conviction of criminal contempt in the second degree would not render him deportable … . …

“[A]n evaluation of whether an individual in the defendant’s position could rationally reject a plea offer and proceed to trial must take into account the particular circumstances informing the defendant’s desire to remain in the United States. Those particular circumstances must then be weighed along with other relevant factors, such as the strength of the People’s evidence, the potential sentence, and the effect of prior convictions” … . The evidence elicited at the hearing established that the defendant had resided in the United States since 1988 and had five children, all citizens of the United States, whose care and well-being were priorities for him. Under the circumstances, notwithstanding the apparent strength of the People’s case against the defendant, we cannot say that a decision to face the risks of proceeding to trial, including the exposure to a harsher sentence, would not have been rational. People v Saunders, 2021 NY Slip Op 02181, Second Dept 4-7-21

 

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THE DETECTIVE WHO CONDUCTED THE LINEUP WAS AWARE DEFENDANT WAS REPRESENTED BY AN ATTORNEY BUT DID NOT NOTIFY THE ATTORNEY OF THE LINEUP; THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the detective who conducted a line-up identification with the defendant was aware defendant was represented by an attorney, but did not notify the attorney of the line-up. The identification evidence should have been suppressed:

As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . However, there are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation and the police know, or can be charged with knowledge of, that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney … . In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

Here, prior to the lineup, the attorney representing the defendant on another matter spoke to the arresting officer and identified herself as the defendant’s attorney. The detective who conducted the lineup testified at the suppression hearing that he was aware prior to conducting the lineup that the defendant was represented by an attorney. Moreover, the only reasonable inference from the detective’s testimony was that he was aware that the defendant was represented by the attorney with respect to the robbery case under investigation. People v Marion, 2021 NY Slip Op 02177, Second Dept 4-7-21

 

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DEFENDANT ALLEGED A PROSECUTOR WHO PARTICIPATED IN HIS PROSECUTION HAD REPRESENTED AN ACCOMPLICE IN THE SAME CRIME; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction. The defendant alleged a prosecutor, Vecchione, participated in his prosecution after having represented a codefendant, Bobb, in the same matter:

A prosecutor’s “paramount obligation is to the public” … , and “a defendant, as an integral member of the body politic, is entitled to a full measure of fairness” from that public officer … . Here, the defendant asserts, among other things, that Vecchione was in a position to use privileged information learned through prior representation of the defendant’s accomplice in the crime charged, thus giving the People an unfair advantage in the defendant’s case … . Generally, a public prosecutor should not be removed from prosecuting a case “unless necessary to protect a defendant from ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence'” … . “[T]he appearance of impropriety, standing alone, might not be grounds for disqualification” … .

Under the particular circumstances of this case, in which evidence was presented suggesting that Vecchione was directly involved in the defendant’s prosecution after having represented his accomplice in the charged crime … , questions of fact existed as to whether the defendant suffered “actual prejudice or a substantial risk of an abused confidence” so as to warrant vacatur of his conviction … . People v Breedan, 2021 NY Slip Op 02173, Second Dept 4-7-21

 

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THE COMPLAINT BY THE CONDOMINIUM BOARD OF MANAGERS AGAINST THE CONDOMINIUM MANAGING AGENT STATED DISTINCT CAUSES OF ACTION FOR BOTH BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT; THE LAW FIRM WHICH REPRESENTED THE MANAGING AGENT IN AN UNRELATED MATTER INVOLVING THE CONDOMINIUM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court in this dispute between the board of managers of Brightwater Condominium and the condominium managing agent, FirstService, determined the complaint stated causes of action for both breach of fiduciary duty and breach of contract, and the law firm (Woods) which represented FirstService in another matter with only a tangential relationship with Brightwater should not have been disqualified:

Managing agents of a condominium may owe a fiduciary duty to the condominium, depending on the functions they assume … . A fiduciary, in the context of condominium management, “is one who transacts business, or who handles money or property, which is not [its] own or for [its] own benefit, but for the benefit of another person, as to whom [it] stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part” … . …

Although a cause of action alleging breach of fiduciary duty which is based on the same facts and seeks identical damages is duplicative of a breach of contract cause of action and should be dismissed on that basis … , here, in addition to breaches of the management agreement, Brightwater alleges specific breaches of trust which are outside the duties set forth in the management agreement, such as misappropriation of funds, and instances of self-dealing, set forth with specificity. …

FirstService did not dispute Brightwater’s showing that no confidential information was obtained from FirstService by the Woods Firm in connection with that prior action. As there is no indication in the record that confidential information was disclosed, there is no basis for disqualification … . Board of Mgrs. of Brightwater Towers Condominium v FirstService Residential N.Y., Inc., 2021 NY Slip Op 02128, Second Dept 4-7-21

 

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THE TRIAL JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge did not conduct an adequate inquiry before allowing defendant 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 a 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” … . “The record should also disclose ‘that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ of the right to counsel” … . Here, although the court obtained certain pedigree information from the defendant, it failed to ascertain that the defendant was aware of the risks inherent in proceeding without an attorney and the benefits of having counsel represent him at trial … . Moreover, the court failed to discuss the potential sentence that could be imposed … . Thus, the court’s inquiry was insufficient to ensure that the defendant understood the dangers and disadvantages of self-representation. People v Lemmo, 2021 NY Slip Op 01997, Second Dept 3-31-21

 

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DEFENDANT WAS CONVICTED OF FELONY MURDER, TWO COUNTS OF ROBBERY AND CRIMINAL POSSESSION OF A WEAPON BASED PRIMARILY ON HIS CONFESSION; THE ROBBERY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE JUDGE DID NOT MAKE THE REQUIRED MINIMAL INQUIRY WHEN DEFENDANT REQUESTED NEW COUNSEL; COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THE REDACTION OF DEFENDANT’S VIDEO STATEMENT; NEW TRIAL ORDERED ON THE FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, dismissing the robbery counts, and ordering a new trial on the murder and criminal possession of a weapon counts, in a full-fledged opinion by Justice Troutman, determined: (1) conviction of felony murder based upon a confession requires only corroboration of the murder, not the underlying felony (robbery here); (2) the convictions on the two robbery counts were against the weight of the evidence; (3) the judge did not conduct the required “minimal inquiry” when defendant made specific factual complaints about his counsel and asked for new counsel–the error was not cured by the appointment of new counsel right before trial; and (4) defendant’s counsel were ineffective because defendant’s video statement was not redacted to remove reference to defendant’s history of incarceration. The legal discussions are too detailed to fairly summarize here. The facts are:

On October 14, 2013, the victim stumbled home, a fatal knife wound in his back. He was pronounced dead that evening. Two days later, the police interviewed defendant, who provided a video-recorded statement. Defendant admitted that, on the evening of the crime, he was on South Salina Street in the City of Syracuse with three other young men—a cousin of his, a juvenile, and Tony Comer, Jr.—when the victim approached them for the purpose of buying drugs. Comer used the promise of drugs to lure the victim into a cut in the roadway and steal his wallet. When Comer and the victim came out of the cut, the victim was shirtless. Comer was smiling, holding the victim’s torn, white T-shirt. The victim left, shouting that he would come back with a gun and start shooting. Comer told the others that the victim still had $10 on his person, and the juvenile stated that he wanted the victim’s last $10. About 10 or 15 minutes later, the victim returned wearing a sweatshirt, looking for his wallet. Defendant, his cousin, and the juvenile fought the victim. Defendant admitted that, by fighting the victim, he was helping the juvenile to acquire the victim’s last $10 and that, during the fight, defendant stabbed the victim once in the back using a knife that he had concealed in his sleeve. People v Stackhouse, 2021 NY Slip Op 01883, Fourth Dept 3-26-21

 

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AN EMAIL INFORMING PLAINTIFF THAT DEFENDANT LAW FIRM WOULD NOT APPEAL THE RULING OF THE WORKERS’ COMPENSATION APPELLATE PANEL DID NOT UNEQUIVOCALLY TERMINATE THE FIRM’S REPRESENTATION OF PLAINTIFF IN THE WORKERS’ COMPENSATION MATTER (FIRST DEPT).

The First Department, reversing Supreme Court, determined an email from the attorney defendants to the plaintiff did not unequivocally terminate the firm’s representation of plaintiff before the Workers’ Compensation Board:

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers’ Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation … . Defendants’ statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers’ Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers’ compensation matter, which remained pending following the administrative review … . This is particularly true in light of the terms of the retainer agreement. Schwenger v Weitz, Kleinick & Weitz, LLP, 2021 NY Slip Op 01869, First Dept 3-25-21

 

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