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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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FAMILY COURT SHOULD NOT HAVE REFUSED FATHER’S COUNSEL’S OFFER TO REMAIN AS STANDBY COUNSEL AND SHOULD NOT HAVE ALLOWED FATHER TO REPRESENT HIMSELF WITHOUT WARNING FATHER OF THE DANGERS OF SELF-REPRESENTATION (THIRD DEPT).

The Third Department determined Family Court did not abuse its discretion in refusing to assign counsel to father in this child support proceeding, but Family Court should have conducted a right-to-counsel inquiry before allowing father to represent himself, especially in light of father’s counsel’s offer to remain on standby:

English is not the father’s first language. Although he had appeared in Family Court many times, he had been chastised for failing to appreciate the role of counsel, and the court had noted that his prior pro se submissions were inappropriate or inadequate … . Moreover, there was a critical error in holding that the discharged counsel could not be allowed to remain as standby counsel … . For these reasons, although the father’s request to represent himself was unequivocal, we cannot find that the waiver of his right to counsel at the confirmation hearing was voluntary, knowing and intelligent, based upon the court’s failure to make an appropriate warning of the dangers of so proceeding, coupled with the refusal to allow counsel to remain on standby … . Matter of Saber v Saccone, 2021 NY Slip Op 01811, Third Dept 3-25-21

 

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FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME) IS A “POLICY ISSUE” WARRANTING DENIAL OF NO-FAULT BENEFITS AND THE AWARD OF ATTORNEY’S FEES TO PLAINTIFF (FIRST DEPT).

The First Department, reversing the Appellate Term and disagreeing with other courts, determined the failure to show up for an independent medical exam (IME) is a “policy issue” warranting the denial of no-fault benefits and the award of attorney’s fees to plaintiff:

… [A]n insurer who denies a claim for first-party No-Fault benefits on the basis of the injured person’s failure to attend an IME properly does so by checking box 4 on the denial of claim form, and therefore an injured person’s failure to attend an IME is a “policy issue” both according to the denial of claim form and for purposes of awarding attorneys’ fees under 11 NYCRR 65-4.6(c). Kamara Supplies v GEICO Gen. Ins. Co., 2021 NY Slip Op 01848, First Dept 3-25-21

 

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PETITIONER SOUGHT ATTORNEY’S FEES AS THE PREVAILING PARTY PURSUANT TO NEW YORK’S EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY;” THE 4TH DEPARTMENT REJECTED THE CATALYST THEORY, FINDING PETITIONER WAS NOT THE PREVAILING PARTY UNDER THE TERMS OF THE STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the so-called “catalyst theory” did not apply to New York’s Equal Access to Justice Act (EAJA). The EAJA, in certain circumstances, allows a prevailing party to recover attorney’s fees against the state. Here petitioner argued that petitioner’s seeking reconsideration of a determination by the NYS Office for People with Developmental Disabilities (OPWDD) prompted the OPWDD to grant petitioner’s application. Petitioner argued the request for reconsideration was the “catalyst” for the OPWDD’s granting the application and petitioner was therefore entitled to attorney’s fees. The Fourth Department determined petitioner was not a “prevailing party” within the meaning of the NYS EAJA:

This Court has yet to address the issue, but we now reject application of the catalyst theory in State EAJA cases. Where, as here, litigation is rendered moot by an administrative change in position, the petitioner or plaintiff has not prevailed “in the civil action” (CPLR 8602 [f]). Matter of Criss v New York State Dept. of Health, 2021 NY Slip Op 01642, Fourth Dept 3-19-21

 

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