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SELLER’S ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT PROPERLY DISMISSED; THE CONTRACT WAS SUBJECT TO ATTORNEY APPROVAL BUT NO DEADLINE FOR ATTORNEY-APPROVAL WAS SET BY THE AGREEMENT; DEFENDANTS’ COUNSEL INFORMED PLAINTIFF’S COUNSEL THAT DEFENDANTS DID NOT WISH TO GO FORWARD WITH THE PURCHASE EITHER SEVEN OR NINE DAYS AFTER THE CONTRACT WAS EXECUTED, WHICH WAS DEEMED A REASONABLE TIME (SECOND DEPT).

The Second Department determined defendant-purchasers’ motion to dismiss the complaint seeking specific performance of a real estate purchase agreement was property granted. The agreement was subject to attorney approval and defendants’ attorney disapproved the contract either seven or nine days after the agreement was executed. There was no time-limit for attorney approval in the agreement, and seven or nine days were deemed a reasonable time:

… [T]he defendants established their entitlement to dismissal of the complaint pursuant to CPLR 3211(a)(7). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

The evidentiary material submitted by the defendants in support of their motion demonstrated that the plaintiff had no cause of action against them. Contrary to the plaintiff’s contention, the evidence conclusively established that the purchase agreement was unenforceable because it was subject to attorney approval, which was not given by the defendants’ attorney. As the purchase agreement contained no time limit within which approval was required “a reasonable time for cancellation thereunder is implied” … . Whether, as acknowledged by the defendants, it was seven days after the parties entered into the purchase agreement that the defendants’ attorney disapproved it, or as alleged by the plaintiff, it was nine days after the parties entered into the purchase agreement that the defendants’ attorney disapproved it, the time between the parties entering into the agreement and the disapproval was minimal, during which no prejudice would inure to the plaintiff, and was a reasonable time period as a matter of law. Makris v Boylan, 2019 NY Slip Op 06598, Second Dept 9-18-19

 

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ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the interest of justice. The court noted Criminal Procedure Law 710.30 does not apply to statements made voluntarily in a noncoercive, noncustodial setting. Therefore the failure to timely notify the defense of the defendant’s admission to the murder made to a confidential informant was not an error. Based upon the trial judge’s characterization of the defendant at sentencing, the new trial will be before a different judge:

Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness …, which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath. …

… .[T]he prejudice to the defendant arose from (1) the prosecutor’s posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell’s refusal to testify, and (3) the court’s jury instructions that the jury may draw an inference of the defendant’s guilt from Mitchell’s refusal to testify. …

“Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” … . “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . People v Ward, 2019 NY Slip Op 06419, Second Dept 8-28-19

 

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APPELLATE COUNSEL’S BRIEF IN SUPPORT OF LEAVE TO WITHDRAW WAS DEFICIENT, NEW APPELLATE COUNSEL ASSIGNED (SECOND DEPT).

The Second Department determined appellate counsel’s brief in support of a motion to withdraw was deficient:

An appellate court’s role in reviewing an attorney’s motion to be relieved pursuant to Anders v California (386 US 738) consists of two separate and distinct steps … . Step one requires the appellate court to perform “[an] evaluation of assigned counsel’s brief, which must, to be adequate, discuss relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority'” … . Step two requires the appellate court to perform “an independent review of the record’ to determine whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct'” … .

Here, the brief submitted by the defendant’s counsel pursuant to Anders v California (386 US 738) was deficient because it failed to adequately analyze potential appellate issues, including, but not necessarily limited to, whether the defendant’s plea of guilty was entered knowingly, intelligently, and voluntarily … . Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant’s plea of guilty was knowing, intelligent, and voluntary … . Accordingly, under the circumstances, we must assign new counsel to represent the defendant. People v Robinson, 2019 NY Slip Op 06417, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE INTOXICATION DEFENSE IN THIS MURDER CASE; THE MANSLAUGHTER CHARGE MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF MURDER (SECOND DEPT).

The Second Department determined defendant received effective assistance of counsel but the manslaughter first charge, as a lesser inclusory concurrent count of murder second, must be dismissed. Defendant argued defense counsel was ineffective for failing to raise the intoxication defense in this stabbing case:

Assuming, without deciding, that the evidence at trial was sufficient to warrant an intoxication charge … , defense counsel was not ineffective for failing to request that charge in this case. Defense counsel prudently pursued arguments which sought to present this incident as a perfect storm of unnecessary escalation by the victim, followed by actions taken by the defendant to protect himself and his friends, all resulting in the wholly accidental death of the victim. Defense counsel could have strategically determined that requesting an intoxication charge would have undermined, or distracted from, the narrative the defense had pursued that the defendant was forced to make a decision when faced with the angry victim to protect himself and his friends. Accordingly, the defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel’s failure to request the intoxication charge … . People v Moreira, 2019 NY Slip Op 06414, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT WHICH WAS ISSUED BASED UPON UNWARNED STATEMENTS MADE BY DEFENDANT, STATEMENTS WHICH HAD BEEN SUPPRESSED BY THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering new suppression motions and a new trial, determined defense counsel was ineffective for failing to move to suppress tangible evidence seized pursuant to a search warrant which was issued based upon unwarned statements made by the defendant, statements which had been suppressed by the trial court:

Here, defense counsel’s assertion of an inappropriate argument in support of the belated suppression motion, and counsel’s complete failure to challenge the admissibility of physical evidence seized from the defendant’s home based on the Miranda violation … , prejudiced the defendant and rendered counsel’s representation ineffective … . People v Corchado, 2019 NY Slip Op 06408, Second Dept 8-28-19

 

PLAINTIFF’S ATTORNEY VIOLATED THE RULES OF PROFESSIONAL CONDUCT BY DEPOSING A NONPARTY WITNESS WHEN HER COUNSEL WAS NOT PRESENT, HOWEVER THE VIOLATION DID NOT PREJUDICE DEFENDANTS AND DID NOT THEREFORE REQUIRE DISQUALIFICATION (FOURTH DEPT). ​

The Fourth Department determined the motion to disqualify plaintiff’s attorney for deposing an important nonparty witness without counsel present was properly denied. However, Supreme Court should not have precluded further questioning of the witness:

“Disqualification of a party’s chosen counsel . . . is a severe remedy which should only be done in cases where counsel’s conduct will probably taint the underlying trial’ ” … . Here, although plaintiff’s attorney improperly engaged in conversations with an allegedly represented nonparty witness, delayed in providing notes regarding one of those conversations, and allegedly misrepresented the nature of one of the conversations, we reject defendants’ contentions that plaintiff’s attorney has gained any unfair advantage requiring his disqualification.

Generally, a violation of the Rules of Professional Conduct, while relevant to the issue whether the attorney’s continued participation will taint a case, is not, in and of itself, sufficient to warrant disqualification … . Based on our review of the records … , we cannot conclude that plaintiff’s attorney obtained any information that he could not have otherwise obtained in the ordinary course of discovery … . Any improper testimony from the witness at her first deposition would be inadmissible at trial, and we doubt that any knowledge plaintiff’s attorney acquired regarding the witness’s inadmissible opinions would lead the attorney to develop a novel theory of the case or to uncover otherwise undiscovered information. We thus conclude that disqualification of plaintiff’s attorney was not “necessary in order to rectify the situation and to prevent the offending [attorney] from realizing any unfair advantage” from his conduct … . Harris v Erie County Med. Ctr. Corp., 2019 NY Slip Op 06352, Fourth Dept 8-22-19

 

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WHETHER MOTHER VALIDLY WAIVED HER RIGHT TO COUNSEL WAS APPEALABLE BECAUSE THE ISSUE WAS CONTESTED BEFORE MOTHER DEFAULTED BY FAILING TO APPEAR, DESPITE THE FACT THAT MOTHER’S REQUEST TO REPRESENT HERSELF WAS GRANTED; MOTHER WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP (FOURTH DEPT). ​

The Fourth Department, over two separate dissents, determined: (1) whether mother was adequately informed of the rights she was giving up by representing herself was appealable because the matter was contested before mother defaulted by failing to appear; (2) the fact mother was granted the right she requested (representing herself) did not preclude her appeal of the adequacy of her waiver of her right to an attorney; (3) mother was adequately informed of the rights she was giving up:

The mother contends … that Family Court erred in failing to ensure, in response to her request to proceed pro se, that her waiver of the right to counsel was knowing, intelligent, and voluntary. Initially, we conclude that the mother’s contention is reviewable on appeal from the orders … despite her default. CPLR 5511 provides, in relevant part, that “[a]n aggrieved party . . . may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” Thus, in general, “[n]o appeal lies from an order [or judgment] entered upon an aggrieved party’s default”… . Nevertheless, “notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those matters which were the subject of contest’ before the [trial court]” … .

… [W]e conclude that “[t]he issue of the mother’s waiver of the right to counsel was the subject of contest before . . . [the c]ourt and, therefore, may be reviewed by this Court …”. * * *

… [M]other was repeatedly advised by the court of the right to counsel, including assigned counsel, and was represented by several attorneys throughout the proceedings. Yet she discharged or consented to the withdrawal of each of those attorneys for her own reasons and ultimately opted to represent herself, even after she was advised that proceeding without the assistance of trained and qualified counsel might be difficult or detrimental and that she would be required to follow the rules of evidence. The mother also demonstrated the ability and preparedness to proceed pro se by, among other things, issuing subpoenas to various witnesses and filing exhibits. The record thus establishes that the court’s inquiry was sufficient to ensure that the mother’s waiver of the right to counsel was knowing, intelligent, and voluntary … . Matter of DiNunzio v Zylinski, 2019 NY Slip Op 06337, Fourth Dept 8-22-19

 

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COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on ineffective assistance grounds. The motion alleged that defense counsel did not adequately investigate alibi witnesses. The Fourth Department also held that County Court properly found a witness’s recantation of trial testimony unbelievable:

In recognition of the fact that “[t]here is no form of proof so unreliable as recanting testimony” … , courts have set forth a list of factors to be considered where, as here, the newly discovered evidence is recantation evidence, i.e., “(1) the inherent believability of the substance of the recanting testimony; (2) the witness’s demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” … .  Another relevant factor is “whether the recantation refutes the eyewitness testimony of another witness” … . …

… [D]defendant’s CPL 440.10 motion was supported by notarized but unsworn statements of two previously unknown individuals who claimed that they would have corroborated the trial testimony of defendant and his mother that defendant was at a party at his mother’s home for the entire evening of the shooting. One of those witnesses specifically stated that she was at all times willing to “make [a] statement” but was never contacted by defense counsel. Two additional witnesses stated that they observed defendant at that party some time after the shooting. While those witnesses do not provide a technical alibi for defendant because they did not discuss defendant’s location at the time of the shooting … , they tend to support the alibi evidence that defendant could not have been the shooter because he was at a party at his mother’s house for the entire evening … . People v Howard, 2019 NY Slip Op 06309, Fourth Dept 8-22-19

 

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DEFENDANTS’ ATTORNEYS SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE THEY HAD REPRESENTED PLAINTIFFS’ TRUSTEE, A NONPARTY, IN AN UNRELATED MATTER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, determined that defendants’ attorneys, Rupp Baase, should not have been disqualified because the firm had represented a nonparty trustee of plaintiffs on an unrelated matter. The concurrence argued the matter was not justiciable because the court was asked to decide whether there was a conflict of interest between Rupp Baase and a nonparty. The lawsuit stemmed from a fire at plaintiffs’ Elks Lodge allegedly caused by a boiler installed by defendants:

… [P]laintiffs “had to establish that the issues in the present litigation are identical to or essentially the same as those in the prior representation or that [Rupp Baase] received specific, confidential information substantially related to the present litigation” … . Even assuming, arguendo, that a prior attorney-client relationship existed between Rupp Baase and the Trustee, we conclude that plaintiffs failed to establish that the interests of defendants in this action are materially adverse to the interests of the Trustee individually, who is not a named party and is merely a trustee of the Lodge. Plaintiffs likewise failed to establish that any alleged prior representation involved issues that were “identical to or essentially the same” as those in the instant lawsuit (id.). Although the Trustee asserts that he told Rupp Baase during their alleged representation of him that a fire had occurred on plaintiffs’ property due to defendants’ boiler installation, a claim that Rupp Baase disputes, we conclude that, even if the Trustee provided that information, it was not “specific [and] confidential” and thus does not warrant disqualification … . Because plaintiffs failed to establish that the Trustee’s interests are materially adverse to defendants’ in this lawsuit and that this lawsuit is substantially related to the alleged prior representation, the court abused its discretion in granting that part of plaintiffs’ motion seeking disqualification of Rupp Baase … . Benevolent & Protective Order of Elks of United States of Am. v Creative Comfort Sys., Inc., 2019 NY Slip Op 06246, Fourth Dept 8-22-19

 

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PARTY AND ITS ATTORNEYS ORDERED TO PAY SANCTIONS FOR FAILING TO INFORM THE APPELLATE COURT OF THE SETTLEMENT OF ACTIONS ON APPEAL (SECOND DEPT).

The Second Department imposed sanctions on a party and its attorneys for failure to inform the appellate court of the settlement of matters on appeal:

… Gross Polowy, LLC, trial counsel for the respondent, is directed to pay a sanction in the [*2]sum of $1,000 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Day Pitney, LLP, appellate counsel for the respondent, is directed to pay a sanction in the sum of $250 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Bank of New York Mellon is directed to pay a sanction in the sum of $500, and shall deposit the sum of $500 with the Clerk of this Court for transmittal to the Commissioner of Taxation and Finance … . Bank of N.Y. Mellon v Smith, 2019 NY Slip Op 06228, Second Dept 8-13-19

 

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