You are here: / Attorneys
,

SUSPENDED ATTORNEY ENTITLED TO QUANTUM MERUIT COMPENSATION FOR WORK DONE PRIOR TO THE SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a suspended attorney was entitled to quantum meruit compensation for work done prior to the suspension. The matter was remitted for a hearing to determine the appropriate amount of compensation:

The nonparty-appellant, a suspended attorney, contends that he is entitled to legal fees in quantum meruit for work performed on behalf of the plaintiff in this personal injury action prior to his suspension from the practice of law; the suspension was unrelated to his representation of the plaintiff in this action. The Supreme Court should have granted the appellant’s motion for that relief.

22 NYCRR 1240.15(g) of the rules for attorney disciplinary matters provides as follows: “Compensation. A respondent who has been disbarred or suspended from the practice of law may not share in any fee for legal services rendered by another attorney during the period of disbarment or suspension but may be compensated on a quantum meruit basis for services rendered prior to the effective date of the disbarment or suspension. On motion of the respondent, with notice to the respondent’s client, the amount and manner of compensation shall be determined by the court or agency where the action is pending or, if an action has not been commenced, at a special term of the Supreme Court in the county where the respondent maintained an office. The total amount of the legal fee shall not exceed the amount that the client would have owed if no substitution of counsel had been required” … . Ragland v Molloy, 2020 NY Slip Op 03933, Second Dept 7-15-20

 

, , , ,

DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who handled defendant’s guilty plea. Defendant argued he would not have pled guilty had he been aware of the deportation consequences:

Contrary to the People’s contention, defendant’s failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit (see CPL 440.10 [3] [c]… ). We further note that County Court’s denial of defendant’s motion was not mandatory as CPL 440.10 (3) provides that “in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment” … .

In that vein, we note the numerous statements made in the supporting affidavit of defendant’s former attorney with respect to his representation of defendant in his 2000 criminal matter. The affidavit indicates that, upon being retained by defendant, his sole focus was on negotiating a favorable split sentence that would allow defendant to be released from custody as soon as possible. He admits that, in pursuing a favorable sentence, he did not conduct any investigation of the facts surrounding the underlying criminal offense, initiate any preindictment discovery or otherwise raise what he now identifies are arguably fatal deficiencies in the charges brought against defendant. With respect to defendant’s allegation that he was affirmatively misinformed regarding the potential immigration consequences of entering a guilty plea to a class C drug felony, the attorney candidly concedes that, despite being aware of the fact that defendant was only a lawful permanent resident and not a citizen of the United States at the time that defendant entered his September 2000 guilty plea, he specifically advised defendant that his guilty plea would have no effect on his lawful permanent resident status and that he would not be deported from the country. People v Perez, 2020 NY Slip Op 03825, Third Dept 7-9-20

 

, ,

DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a hearing was necessary on defendant’s motion to vacate his conviction based upon ineffective assistance of counsel. Defendant alleged defense counsel overstated the risk of deportation causing defendant to reject a favorable plea offer:

A defense attorney’s performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation … . Here, defendant complains that his counsel overstated the immigration consequences of accepting an offer of a guilty plea to petit larceny by advising him that it would “definitely” result in deportation, when in fact it would only have rendered him deportable with the possibility of discretionary relief. Thus, defendant asserts that he rejected a favorable plea offer based on erroneous advice that the conviction would result in mandatory deportation.

We find that a hearing is necessary to determine whether counsel inaccurately advised defendant of the risk of deportation and if so, whether defendant was prejudiced by the attorney’s misadvice … . People v Qinghua Ni, 2020 NY Slip Op 03621, First Dept 6-25-20

 

,

ALTHOUGH PETITIONER ULTIMATELY PREVAILED AND WAS PROVIDED WITH THE NASSAU COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY (TPVA) RECORDS PURSUANT TO ITS FREEDOM OF INFORMATION LAW (FOIL) REQUEST, BECAUSE THE TPVA PERFORMS EXEMPT ADJUDICATORY FUNCTIONS AS WELL AS NON-EXEMPT PROSECUTORIAL FUNCTIONS THE COUNTY HAD A REASONABLE BASIS FOR INITIALLY WITHHOLDING THE RECORDS; $30,000 ATTORNEY’S-FEES AWARD REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner ultimately prevailed in its Freedom of Information Law (FOIL) action, it was not entitled to attorney’s fees. The petitioner sought records re: Nassau County’s photo speed monitoring system. The records were held by the Nassau County Traffic and Parking Violations Agency (TPVA). Initially the request was denied on the ground that the TPVA is part of the judiciary and therefore was not an “agency” within the meaning of the Public Officers Law. However, the Court of Appeals has clarified that there are aspects of the TPVA which are adjudicatory and aspects which are prosecutorial. Ultimately it was determined the sought records related to the prosecutorial function and were made available to the petitioner. The Supreme Court awarded petitioner over $30,000 in attorney’s fees. But the Second Department reversed:

We disagree with the Supreme Court’s determination to grant the petitioner’s motion for an award of attorney’s fees. Here, the petitioner “substantially prevailed” in the proceeding, inasmuch as the petitioner eventually received the documents sought from the TPVA (see Public Officers Law § 89[4][c] … ). However, the TPVA had a reasonable basis for denying the petitioner’s request for its records based on its reliance upon the Court of Appeals’ statement that “the TPVA was intended to be an arm of the District Court” … , and FOIL’s express exclusion of “judiciary” from its definition of “agency” (Public Officers Law § 86[1], [3]). Although it was ultimately determined that TPVA records concerning its nonadjudicatory responsibilities are not exempt from disclosure pursuant to the Public Officers Law, it remains that TPVA had a reasonable basis in law for withholding the requested materials … . Accordingly, the petitioner’s motion should have been denied. Matter of Law Offs. of Cory H. Morris v County of Nassau, 2020 NY Slip Op 03513, Second Dept 6-24-20

 

,

ONCE A STIPULATION OF DISCONTINUANCE WAS FILED SUPREME COURT LACKED ANY SUPERVISORY CONTROL OVER THE PROCEEDING AND THE MOTION PRACTICE SEEKING TO SET ASIDE THE SETTLEMENT SHOULD HAVE BEEN DENIED ON THAT GROUND; A PLENARY ACTION WAS REQUIRED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined once the stipulation of discontinuance was filed Supreme Court lacked any supervisory control over the proceedings. So the subsequent motions dealing with the allocation of settlement proceeds to the plaintiffs and their attorney should have been denied. After the stipulation of discontinuance a plenary action was required to enforce or set aside the settlement:

As contemplated by the stipulation and order, counsel for the parties executed a stipulation of discontinuance that was filed with the Albany County Clerk (see CPLR 3217 [a] [2]). The filing occurred before any of the motion practice at issue and, as a result, a plenary action was required “to enforce [or set aside] the settlement since the court does not retain the power to exercise supervisory control over previously terminated actions and proceedings” … . Indeed, “[w]hen an action is discontinued, it is as if it had never been,” and Supreme Court lacked authority to grant any of the requested relief … . It follows that both motions should have been denied in their entirety. DeLap v Serseloudi, 2020 NY Slip Op 03443, Third Dept 6-18-20

 

,

ALTHOUGH AN INCOMPLETE CHANGE-OF-ATTORNEY STIPULATION WAS FILED BEFORE THE STIPULATION OF DISCONTINUANCE WAS FILED, THE STIPULATION OF DISCONTINUANCE REMAINED VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stipulation of discontinuance executed by the plaintiff’s then attorney, and filed after plaintiff’s change-of-attorney stipulation was filed, was valid and enforceable. Plaintiff’s change-of-attorney stipulation was not signed by an agent or representative of the plaintiff:

” [A]n attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute'” … . Pursuant to CPLR 321(b), an attorney of record may be changed either by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party, with notice of the change given to the attorneys for all parties in the action, or by order of court upon notice to all parties. ” Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated'” … .

Here, the stipulation of discontinuance was executed by an attorney with the plaintiff’s then attorney of record … (hereinafter outgoing counsel). Though the plaintiff’s stipulation to change its attorney was filed prior to the date on which the stipulation of discontinuance was filed, and was signed by outgoing counsel and incoming counsel, no agent or representative of the plaintiff signed the change-of-attorney stipulation. Nor does the record establish that notification of the plaintiff’s change in attorney was provided to any other party, or to the appellant, prior to the date on which the stipulation of discontinuance was filed. Accordingly, the plaintiff neither filed a properly signed consent to change attorney form nor sought a court order permitting outgoing counsel to withdraw as the plaintiff’s attorney of record in accordance with CPLR 321(b) prior to the filing of the stipulation of discontinuance.  GMAC Mtge., LLC v Galvin, 2020 NY Slip Op 03405, Second Dept 6-17-20

 

, ,

IT MAY HAVE BEEN ERROR TO ALLOW THE VICTIM TO TESTIFY ACCOMPANIED BY A DOG, BUT THE ISSUE WAS NOT PRESERVED; ALTHOUGH THE PROSECUTOR MADE AN IMPROPER COMMENT IT DID NOT REQUIRE REVERSAL; PROSECUTORS ADMONISHED THAT THEIR ROLE IS TO ENSURE JUSTICE IS DONE, NOT SIMPLY SEEK CONVICTIONS (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, noted that allowing the adult victim to testify accompanied by a dog may have been an error but was unpreserved. The court also found that a remark made by the prosecutor was improper (but not reversible error) and took the opportunity to address prosecutorial misconduct generally:

We conclude that defendant’s contention that the court abused its discretion when it permitted the adult victim to testify while accompanied by a dog is unpreserved because defendant did not object to that arrangement … . … Even assuming, arguendo, that defense counsel erred in not objecting to the court’s decision to let the victim testify while accompanied by a dog … , we conclude that the failure to object did not amount to ineffective assistance … .

… [I]t was improper for the prosecutor on summation to characterize defense counsel’s summation as evincing “a Brock Turner mentality”—inflaming the passions of the jury by specifically referring to a recent sexual assault case of nationwide notoriety that involved allegations similar to those made against defendant … .

… [W]e … take this opportunity to remind the People that ” [i]t is not enough for [a prosecutor] to be intent on the prosecution of [the] case. Granted that [the prosecutor’s] paramount obligation is to the public, [he or she] must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, [the prosecutor’s] mission is not so much to convict as it is to achieve a just result’ ” … . To that end, we emphasize that “[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process” … . People v Carlson, 2020 NY Slip Op 03336, Fourth Dept 6-12-20

 

,

DEFENDANT SHOULD HAVE BEEN ALLOWED TO EXPLAIN WHY HE WANTED TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, remitting the matter to Supreme Court to allow defendant to explain his desire to withdraw his plea, determined the sentencing court should not have prevented defendant from giving his reasons:

The court convened for sentencing, at which time defense counsel stated that defendant wanted to withdraw the plea, explaining that defendant had done his own legal research and determined that the appeal waiver encompassed issues that he wanted to raise on appeal. Defense counsel asked to be relieved due to an unspecified conflict of interest. Defense counsel, speaking in hypothetical terms, argued that withdrawal of the plea may be justified if defendant did not receive meaningful representation. The court questioned defendant directly. Defendant confirmed that he wanted to withdraw his plea. The prosecutor then asked the court to inquire into defendant’s grounds for the motion. Defense counsel objected, and the court ruled in defense counsel’s favor, apparently on the ground that such questioning might impermissibly intrude on privileged conversations. “[T]hat’s something you’d have to talk to a lawyer about,” the court explained, “[b]ut I’m going to deny that request.” The court added that defendant had executed a written appeal waiver. Defendant began to explain why he had executed the waiver, but the court stopped him from doing so, stating, “It’s not your turn to talk right now.” …

Although we agree with our dissenting colleagues that defense counsel did not take a position adverse to defendant, under the circumstances of this case, we conclude that the court erroneously deprived defendant of a reasonable opportunity to present his contentions in support of his motion to withdraw the plea … . People v Ramos, 2020 NY Slip Op 03364, Fourth Dept 6-12-20

 

, ,

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED; DEFENSE COUNSEL DID NOT ATTEMPT TO SECURE THE TESTIMONY OF A WITNESS WHO WOULD TESTIFY THAT HER BOYFRIEND, WHO USED TO BE THE BOYFRIEND OF THE MURDER VICTIM, CONFESSED TO KILLING THE VICTIM (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant’s motion to vacate his murder conviction on ineffective assistance grounds should have been granted. Defendant demonstrated that a witness was willing to testify that her boyfriend had confessed to the murder. When the witness did not show up to testify, defense counsel did not attempt to secure her attendance:

… [A]t the time of the trial, defense counsel explicitly informed the court, on the record, that his strategy was to call the witness and present her exculpatory testimony. In this regard, defense counsel stated, “[t]here’s one other issue that may or may not come up . . . [that has] to do with [the witness]. [The witness] had a conversation with her then-boyfriend . . . who had been the boyfriend of [the victim] where [the boyfriend] made a tape recording of his voice, identifying his name, his date of birth and his social security number, and indicated there that he killed [the victim]. His words were I killed the bitch. I killed the bitch. I killed the bitch.’ And that is the substance of a police report that I received from [the prosecutor].” When the court asked how defense counsel intended to introduce this testimony, he responded, “[w]ell, I intend to call [the witness], should she appear in court. She was subpoenaed. She appeared on Thursday pursuant to the subpoena as well and told me this information for the first time. I don’t know whether she’s going to be here when we need to call her, which is why I thought maybe we’d wait and see if she showed up and not take the Court’s time to do extra research on this issue. But since you’ve asked me to bring up any possible issues, I would put her on the witness stand and make an offer of proof to the Court and attempt to prove her reliability of the information that she’s giving under the Settles case relating to a statement against [the boyfriend’s] penal interest.” When the court then asked whether “[the witness’s] testimony would relate to this particular homicide,” defense counsel responded, “Oh yes. Yes.” Nevertheless, and consistent with defense counsel’s representation that he would pursue the testimony only if the witness appeared as directed, defense counsel took no further action to secure the witness’s presence when she did not appear … . We agree with defendant that the failure to secure the witness’s attendance was deficient conduct and that the record discloses no tactical reason for defense counsel’s actions … . People v Borcyk, 2020 NY Slip Op 03359, Fourth Dept 6-12-20

 

, , ,

THE SECTION OF THE VEHICLE AND TRAFFIC LAW RELIED ON BY THE POLICE FOR THE VEHICLE STOP MAY NOT HAVE BEEN APPLICABLE AND THE STOP THEREFORE MAY HAVE BEEN ILLEGAL; DEFENSE COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS ON THAT GROUND CONSTITUTED INEFFECTIVE ASSISTANCE; PLEA VACATED AND MATTER REMITTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the initial stop of the vehicle in which defendant attempted to flee from a public housing complex parking area may not have been justified and the defense attorney was ineffective for failing to move to suppress on that ground. The vehicle stop was based on the alleged violation of Vehicle and Traffic Law 1211 (unsafe backing). But the statute does not apply to parking areas as opposed to parking lots. The Fourth Department held the application of the law to a parking area would not constitute an objectively reasonable mistake of law which could justify the stop. On the record before it, however, the Fourth Department could not determine whether the area in question met the statutory definition of a parking lot:

… [D]efendant had a valid argument that the initial vehicle stop was unlawful because the parking area in which the police purportedly observed unsafe backing was not a “parking lot” within the meaning of Vehicle and Traffic Law § 129-b … . …

Defendant also had a valid argument that the initial vehicle stop could not be justified due to the police officers’ objectively reasonable, yet mistaken, belief that the parking area was a “parking lot” as defined by Vehicle and Traffic Law § 129-b … ….

Although contentions that defense counsel was ineffective survive only to the extent that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that . . . defendant entered the plea because of [defense counsel’s] allegedly poor performance” … , the court’s consideration of the aforementioned arguments here would likely have resulted in suppression of the handgun and, concomitantly, dismissal of some or all of the indictment … . We therefore conclude that defendant demonstrated that “there is a reasonable probability that, but for counsel’s error[], [defendant] would not have pleaded guilty” … . People v Allen, 2020 NY Slip Op 03295, Fourth Dept 6-12-20

 

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