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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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THE TRANSCRIPT OF THE SETTLEMENT PROCEEDING UTTERLY REFUTED PLAINTIFF’S CLAIM TO HAVE BEEN COERCED INTO SETTLING, THE LEGAL MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT),

The Second Department, reversing Supreme Court, determined that defendants-attorneys’ motion to dismiss the complaint in this legal malpractice action should have been granted because the transcript of the settlement proceeding utterly refuted the allegations in the complaint. Plaintiff alleged it was coerced into settling the action:

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . …

A legal malpractice cause of action “is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … .

In support of their motion, the defendants submitted the transcript of the court proceeding setting forth the terms of the settlement of the underlying action, which conclusively established that the plaintiff was not coerced into settling … . The plaintiff’s allegations that it was coerced into settling the underlying action were utterly refuted by the admissions of its principals during the settlement proceeding that they had discussed the terms of the settlement with their attorneys, understood the settlement terms, and had no questions about them; that they were entering into the settlement freely, of their own volition, and without undue influence or coercion; and that they were satisfied with their legal representation … . Glenwayne Dev. Corp v James J. Corbett, P.C., 2019 NY Slip Op 06069, Second Dept 8-7-19

 

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DEFENDANTS’ CROSS-MOTION FOR SANCTIONS RELATING TO DISCLOSURE WAS NOT ACCOMPANIED BY DEFENSE COUNSEL’S AFFIRMATION DEMONSTRATING A GOOD FAITH EFFORT TO RESOLVE THE ISSUES ADDRESSED IN THE MOTION, THE CROSS-MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined defendants’ cross-motion for sanctions pursuant to CPLR 3126 relating to disclosure should not have been granted. The cross-motion was not accompanied by defense counsel’s affirmation demonstrating a good faith effort to resolve the issues addressed by the motion:

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the defendants’ counsel in support of the cross motion for sanctions pursuant to CPLR 3126 failed to provide any detail of the claimed efforts to resolve the issues. While the defendants’ counsel asserted that he had conversations with the plaintiff’s counsel, he did not identify the dates of such conversations or the name of the attorney with whom he conversed. Therefore, the cross motion should have been denied … . Bronstein v Charm City Hous., LLC, 2019 NY Slip Op 06058, Second Dept 8-7-19

 

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MOTION TO QUASH SUBPOENA ISSUED TO ATTORNEY WHO REPRESENTED THE ORIGINAL BORROWERS AGAINST PROPERTY SUBJECT TO FORECLOSURE PROCEEDINGS SHOULD NOT HAVE BEEN QUASHED, CIVIL CONTEMPT ACTION AGAINST THE ATTORNEY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR BOTH TYPES OF PROCEEDINGS EXPLAINED (SECOND DEPT).

The Second Department determined the subpoona issued by the current owners of property subject to a foreclosure action (the Frankels) to the attorney (Satran) who represented the parties who initially took out the loan (the Confinos) should not have been quashed, the action for civil contempt against the attorney should not have been dismissed, and attorney-client privilege could only be asserted at a subsequent deposition:

“A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … . ” Should the [movant] meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of [the] action'” … .

Here, Satran failed to meet his initial burden of demonstrating either that the requested disclosure was “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious” … . * * *

Additionally, the Supreme Court should have granted the Frankels’ motion to hold Satran in civil contempt for failure to comply with the subpoena by failing to appear for a deposition. “To prevail on a motion to hold another in civil contempt, the moving party must prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . ” To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party'” … .

Here, it was undisputed that Satran failed to comply with the subpoena by failing to appear for a deposition and that he had knowledge of the terms of the subpoena. Moreover, the Frankels demonstrated that Satran’s conduct prejudiced their right under CPLR 3101(a)(4) to obtain all information relevant and necessary to their defense of the present action and their cross claims against the Confinos … . Wells Fargo Bank, N.A. v Confino, 2019 NY Slip Op 06114, Second Dept 8-7-19

 

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