You are here: / Attorneys
,

DEFENDANT WAS CONVICTED OF DIRECTING THE CODEFENDANT TO KILL; THE CODEFENDANT WAS ACQUITTED OF MURDER; THE VERDICTS WERE REPUGNANT; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE REPUGNANT VERDICTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s attorney was ineffective for failing to object to the repugnant verdict. Defendant was convicted of directing the codefendant to shoot and kill the victim. The codefendant was acquitted of the murder charge:

We agree with defendant … that he was denied meaningful representation at trial inasmuch as there is no reasonable and legitimate trial strategy for defense counsel’s failure to object to the repugnant verdicts  … . …

… “[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime as charged, for which the guilty verdict was rendered” … . “The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions” … . The repugnancy doctrine also applies when one codefendant is convicted of a crime while another is acquitted of the same crime … . …

By acquitting the codefendant, the jury negated an essential element of the crime for which defendant was charged, i.e., that the codefendant committed the offense at defendant’s direction … . People v Jennings, 2021 NY Slip Op 00944, Fourth Dept 2-11-21

 

,

FAMILY COURT SHOULD HAVE APPOINTED AN ATTORNEY FOR THE CHILDREN IN THIS CONTESTED CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Family Court, determined an attorney should have been appointed for the children in this contested custody matter:

The appointment of an attorney for the child in a contested custody matter is “the strongly preferred practice” … . An attorney for the child “is tasked with advocating for the child’s wishes and best interests, precisely because the child has a real and vital interest in the outcome and a voice that should be heard”… . Nevertheless, the appointment of an attorney for the child “is discretionary, not mandatory” … . In making the determination whether the appointment of an attorney for the child is warranted, courts should consider, inter alia, the age of the child and the possibility of prejudice to the child … .

Here, the Family Court improvidently exercised its discretion in declining to appoint an attorney for the children in light of the ages of the children, ranging from 12 to 16 years old at the time of the hearing, the antagonistic nature of the parties’ relationship, and the parties’ conflicting assertions regarding each other’s conduct … . Matter of Weilert v Weilert, 2021 NY Slip Op 00850, Second Dept 2-10-21

 

, ,

THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY TO ENSURE DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL FOR THE SORA HEARING WAS KNOWING, INTELLIGENT AND VOLUNTARY; THE NOTICE OF THE SORA HEARING PROVIDED TO DEFENDANT WAS INADEQUATE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge did not conduct the required inquiry to ensure defendant’s waiver of his right to counsel for the SORA hearing was knowing, intelligent and voluntary. The Fourth Department also noted that notice of the SORA hearing provided to the defendant was inadequate:

…[D]efendant’s purported waiver of the right to counsel is invalid. “It is well settled that defendants have a statutory right to counsel in SORA proceedings” … . In order for a defendant to validly waive his right to counsel, “the court must undertake a ‘searching inquiry . . . aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel’ ” … . Such an inquiry ensures that the defendant’s waiver is ” ‘made competently, intelligently and voluntarily’ ” … .

Here, County Court failed to conduct the necessary searching inquiry and, instead, relied upon defendant’s notation on the form notice he received about his SORA classification proceeding that he did “not wish to have counsel appointed.” …

… [T]he form notice provided to [defendant] about his SORA classification contained numerous deficiencies. The notice did not fully describe the SORA hearing or the consequences that would follow if defendant failed to appear … . It also appears that the court failed to provide defendant with a “copy of the recommendation received from the [Board of Examiners of Sex Offenders] and any statement of the reasons for the recommendation” … . In providing the requisite notice to defendants pursuant to section 168-n (3), courts should be tracking the language used in that statute instead of giving a shortened summary. People v Huntley, 2021 NY Slip Op 00688, Fourth Dept 2-5-21

 

, ,

DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE AN ADEQUATE SPEEDY TRIAL MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The motion alleged defense counsel was ineffective for failing to make an adequate speedy trial motion. The Fourth Department found there was a question of fact about whether 88 days should have been excluded from the speedy trial calculation because the defendant was evading arrest:

… [T]he People contended that the speedy trial motion would have been denied even if properly pleaded because defendant was attempting to avoid apprehension and thus the 88 days preceding the People’s first statement of readiness were excludable pursuant to CPL 30.30 (4) (c) (i). In denying the CPL 440.10 motion without a hearing, the court concluded that the trial court had ruled that the 88 days between the commencement of the action and the People’s initial statement of readiness “was not chargeable to the People[] because defendant evaded arrest.” We note, however, that the only evidence in the record supporting the conclusion that defendant was evading arrest was the prosecutor’s statement at defendant’s arraignment on the indictment that she understood that defendant had “fled the area” and was heading to the New York City area, an assertion that was based solely on the supposition of an unnamed member of the police department’s central investigation division. We thus conclude that defendant’s submissions “support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing” … and that “[t]he People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing” … . People v Reed, 2021 NY Slip Op 00758, Fourth Dept 2-5-21

 

, , ,

PLAINTIFF IN THIS TAX LIEN FORECLOSURE ACTION DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED WITH THE NOTICE TO REDEEM; THEREFORE PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES FROM THE DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff was not entitled to attorney’s fees in this tax lien foreclosure action because plaintiff did not demonstrate defendant was properly served with the notice to redeem:

Pursuant to Nassau County Administrative Code § 5-51.0(c), prior to the commencement of this action, the plaintiff was required to serve the defendant with a notice to redeem “by personal service, as defined in the Civil Practice Law and Rules of the State of New York” (see Nassau County Administrative Code § 5-51.0[a]). Here, the plaintiff purportedly served the defendant with the notice to redeem by “nail and mail” service (see CPLR 308[4]). However, contrary to the plaintiff’s contention, this service was ineffective, as the plaintiff failed to exercise the requisite due diligence in first attempting to serve the defendant pursuant to CPLR 308(1) or (2) … .

Where, as here, a plaintiff fails to properly serve the notice to redeem prior to commencing a foreclosure action, the plaintiff is precluded from recovering attorney’s fees from the person to whom the notice was required to be sent, provided that the person “offers to pay the penalties allowed by law at any time before final judgment is entered” (Nassau County Administrative Code § 5-51.0[f]). Here, the defendant offered to pay the penalties allowed by law in a letter … , nearly one month prior to entry of the final judgment … . DBW TL Holdco 2014, LLC v Kirk, 2021 NY Slip Op 00543, Second Dept 2-3-21

 

,

DEFENDANT AND HIS SON WERE REPRESENTED BY THE SAME ATTORNEY; DEFENDANT ALLEGEDLY PLED GUILTY TO ATTEMPTED ASSAULT BECAUSE HE WAS TOLD HIS SON WOULD DO JAIL TIME IF DEFENDANT DID NOT ENTER THE PLEA; BECAUSE OF THE ATTORNEY’S CONFLICT OF INTEREST, DEFENDANT’S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was called to the scene of his son’s (Nicholas’s) arrest for DWI. Defendant was charged with assaulting one of the officer’s at the scene. Both defendant and his son were represented by attorney Ozman. Although defendant maintained he did not assault the officer, but rather was assaulted by the officer as he was frantically trying to find his son, defendant allegedly agreed to plead guilty to attempted assault in order to ensure a good plea deal for his son. Because defendant maintained his innocence in his interview with probation, however, the judge did not abide by the plea agreement and sentenced defendant to incarceration. Prior to sentencing, defendant had hired a new attorney and moved to withdraw his plea:

… [T]he record as a whole demonstrates that the defendant’s plea of guilty was motivated, at least in part, by coercive circumstances. The defendant averred, inter alia, that Ozman urged him to plead guilty despite his protestations of innocence because it was “very likely” that Nicholas would otherwise “face ‘jail time.'” The record also reflects that the favorable terms of Nicholas’ plea offer were conditioned upon the defendant entering a plea of guilty as part of the same plea agreement … . Moreover, the defendant demonstrated a significant possibility of a conflict of interest arising from Ozman’s joint representation of the defendant and Nicholas. The defendant’s maintenance of his innocence was at odds with Ozman obtaining a favorable plea offer for Nicholas as part of the “package deal,” which also required the defendant to enter a plea of guilty … . Thus, the record suggests that the defendant’s plea of guilty was induced by consideration other than his desire to obtain more favorable sentencing for himself, and that the defendant was deprived of representation that was “singlemindedly devoted to his best interests as required by both the Constitution of the United States and the New York State Constitution” … . People v Wentland, 2021 NY Slip Op 00578, Second Dept 2-3-21

 

, ,

BEFORE PETITIONER INMATE’S ARTICLE 78 PETITION WAS CONSIDERED RESPONDENT VOLUNTARILY REVERSED THE GUILTY FINDINGS ON THE PRISON DISCIPLINARY VIOLATIONS; PETITIONER WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY” (THIRD DEPT).

The Third Department determined petitioner inmate was not entitled to attorney’s fees as a prevailing party pursuant to the Equal Access to Justice Act [EAJA] (CPLR Article 86). Petitioner contested guilty findings on several prison disciplinary violations and brought an Article 78 proceeding. Before the Article 78 petition was considered the respondent reversed the disposition and expunged it from petitioner’s prison record. Petitioner then sought attorney’s fees as the prevailing party:

Petitioner contends that he is entitled to counsel fees because he prevailed in the litigation under the “catalyst theory.” [The catalyst theory posits that a petitioner is a prevailing party if the desired result is achieved because the proceeding brought about the voluntary change in the respondent’s conduct … .] * * *

Although this Court has not decided whether it will adopt the catalyst theory in EAJA cases, when this Court has been asked to adopt the catalyst theory in other counsel fee award cases, it has declined to do so as the “United States Supreme Court has clearly held that a voluntary resolution of a matter lacks the necessary judicial imprimatur to warrant an award of [counsel] fees” … . … [T]he Court of Appeals specifically agreed … . The same reasoning applies here. The change in the legal relationship was accomplished prior to answering the petition, was based on the voluntary actions of the Department of Corrections and Community Supervision, and was “not enforced by a consent decree or judgment of Supreme Court” … . Matter of Clarke v Annucci, 2021 NY Slip Op 00473, Third Dept 1-28-21

 

, ,

ALTHOUGH IT APPEARS THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT BEFORE THEY ENTERED THE HOME AND THEREFORE COULD HAVE GOTTEN AN ARREST WARRANT, THERE WAS NO CONSTITUTIONAL VIOLATION BECAUSE THE POLICE ENTERED THE HOME WITH CONSENT; DEFENSE COUNSEL ARGUED THE POLICE DID NOT GET A WARRANT TO DELAY THE ATTACHMENT OF THE RIGHT TO COUNSEL AND PROCURE STATEMENTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers raising a question of first impression, determined the police did not violate the New York Constitution when they entered the home looking for defendant and made a warrantless arrest. The police had probable cause when they went to the home and defense counsel argued they did not get a warrant in order to delay the attachment of the right to counsel and obtain statements. The Second Department determined there was no Payton violation because the motion court credited the police testimony claiming they entered the home with the consent of the person who answered the door:

… [T]he defendant’s appellate counsel specifically contends that where the police, armed with probable cause and ample time to obtain an arrest warrant, nevertheless choose to make a warrantless arrest in the absence of exigent circumstances, their conduct must be deemed to violate the defendant’s indelible right to counsel under the New York State Constitution (see People v Harris, 77 NY2d at 440).

While this issue presents what appears to be an important constitutional question of first impression, we see no viable path to resolving this question in the defendant’s favor within the current framework of New York law. Although the hearing evidence fully supports the defendant’s view that the police went to the subject residence with the intent of making a warrantless arrest—indeed, the People did not present any evidence to suggest any alternative motive for the early morning visit—New York law does not presently recognize a “new category of Payton violations based on subjective police intent” (… People v Harris, 77 NY2d 434). Therefore, we decline to find that the police conduct in this case amounted to a violation of the defendant’s constitutional rights under Payton and/or Harris.

Moreover, since the hearing court’s supportable finding of voluntary consent negates the defendant’s Payton claim, we need not consider the defendant’s further contention regarding the causal link between the warrantless arrest and his subsequent statements to the police. People v Cuencas, 2020 NY Slip Op 08118, Second Dept 12-30-20

 

, ,

MOTHER SHOULD HAVE BEEN ADVISED OF HER RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been advised of her right to counsel in this custody proceeding:

“Family Court Act § 262 provides certain parties to particular Family Court proceedings with a statutory right to counsel. If the party in question falls within one of the enumerated subdivisions thereto, he or she must be advised by the court, before proceeding, that he or she has the right to representation, the right to seek an adjournment to confer with counsel and the right to assigned counsel if he or she cannot afford to retain counsel” … . The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the mother clearly fell within one of the enumerated subdivisions of Family Court Act § 262 because she was the respondent in a custody modification proceeding. Therefore, the Family Court should have advised the mother of her right to counsel. Matter of Follini v Currie, 2020 NY Slip Op 08062, Second Dept 12-30-20

 

, , ,

ONE PURPOSE FOR ASSESSING ATTORNEY’S FEES AGAINST THE AGENCY IN A FREEDOM OF INFORMATION LAW CASE IS TO DISCOURAGE DELAYS IN RESPONSES TO REQUESTS FOR DOCUMENTS; THEREFORE, EVEN THOUGH THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TURNED OVER THE DOCUMENTS BEFORE THE APPEAL, THE DEP STILL SHOULD PAY THE ATTORNEY’S FEES RELATED TO THE APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the request for attorney’s fees for the appeal in this Freedom of Information Law action should not have been denied. Supreme Court reasoned that the Department of Environmental Protection (DEP) had turned over the requested documents before the appeal:

Supreme Court suggested that it would be “unduly punitive” to include appellate counsel fees and costs in its award given that DEC had already disclosed all responsive, nonprivileged documents to petitioners. The goal of an award of counsel fees and costs under Public Officers Law § 89 (4) (c), however, is to deter “unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL” … . As we detailed in our prior decision (169 AD3d at 1311-1312), DEC failed to respond to petitioners’ FOIL administrative appeal in a timely manner and disclosed responsive documents after petitioners advanced a FOIL claim in this action/proceeding, and DEC then resisted petitioners’ efforts to recover counsel fees and costs incurred as a result of its dilatory conduct. In our view, those facts demonstrate that the portion of the prior appeal relating to petitioners’ FOIL claim stemmed from “the very kinds of unreasonable delays and denials of access which the counsel fee provision seeks to deter,” and Supreme Court accordingly abused its discretion in declining to include the counsel fees and costs connected thereto in its award … . Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969, Third Dept 12-24-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy