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THE PARKER WARNINGS DID NOT SPECIFICALLY WARN DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE WERE ARRESTED BETWEEN THE PLEA AND SENTENCING, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE ENHANCED SENTENCE ON THAT GROUND, MATTER REMITTED FOR SENTENCING TO THE AGREED TERM OR FOR AN OPPORTUNITY FOR DEFENDANT TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, reversing County Court, determined the Parker warnings [notifying defendant of the enhanced sentencing consequences of misconduct between the plea and the sentencing] were inadequate and defendant’s counsel was ineffective for not raising the issue. Defendant’s sentence was five years longer than the sentence promised at the time of the plea because he was rearrested. The Parker warnings did not clearly inform defendant his sentence would be enhanced if he was rearrested. The failure to preserve the error was excused because of the ineffective assistance. The Parker warnings, in relevant part, were as follows: ” COURT: Don’t get in any trouble at the jail, don’t get rearrested, don’t get involved with contraband, or break the law, or anything like that in jail, you can do that? DEFENDANT: Yes, sir COURT: Thirdly, the [P]robation [D]epartment is going to be in to see you. They are going to do a presentence report. I ask you to be cooperative with them and honest with them and continue to express the remorse that you show here today because if you don’t cooperate with them, and if you are not honest with them, or if you don’t continue to accept remorse and responsibility for what you did then your plea will stand and I will be free to impose a sentence of 25 years to life and say things to make sure that you never see parole, so, please, cooperate with your probation officer:”

… [C]ounsel was ineffective for failing to challenge the enhanced sentence on the ground that County Court did not insure that defendant was fully aware of the consequences of being rearrested prior to sentencing. A successful challenge to the enhanced sentence would have resulted in County Court having to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his plea … . … People v Hunter, 2019 NY Slip Op 04496, Third Dept 6-6-19

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF WAS PROPERLY DENIED AND THERE WAS SUPPORT IN THE RECORD FOR THE EXISTENCE OF PROBABLE CAUSE TO ARREST (CT APP).

The Court of Appeals, affirming defendant’s conviction, determined the defendant’s request to proceed pro se was properly denied and there was support in the record for the existence of probable cause to arrest. The Court of Appeals did not discuss the facts. The link to the 2nd Department decision is here:

The trial court concluded—based upon, among other things, its own observations of defendant’s conduct throughout these lengthy proceedings and the testimony of defendant’s attending physician—that defendant engaged in malingering insofar as he was competent to proceed but persisted in his efforts to avoid trial. Inasmuch as defendant “engaged in conduct which would prevent the fair and orderly exposition of the issues,” we conclude that the trial court did not abuse its discretion in denying defendant’s request to proceed pro se …. Moreover, the existence of record support for the determination of the courts below that the pursuit of defendant by the police was justified by a “reasonable suspicion” of criminal activity forecloses our further review of that issue … . People v Gregory, 2019 NY Slip Op 04450, CtApp 6-6-19

 

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IN THIS COLLEGE DISCIPLINARY ACTION, THE COLLEGE’S REFUSAL OF THE STUDENT’S REQUEST FOR A THREE-HOUR ADJOURNMENT TO ALLOW HIS ATTORNEY TO ATTEND WAS AN ABUSE OF DISCRETION, NEW HEARING ORDERED (CT APP).

The Court of Appeals, reversing the Appellate Division in this college disciplinary action, determined the student’s request for a three-hour adjournment to allow his attorney to attend should have been granted. The link to the reversed 2nd Department decision is here:

… [T]he petition insofar as it sought to annul respondents’ disciplinary determination [is] granted and the matter remitted to the Appellate Division with directions remand to respondents for a new disciplinary hearing. Petitioner, a student enrolled at respondent Purchase College of the State University of New York, was accused of multiple disciplinary violations including sexual assault of another student. Petitioner requested a three-hour adjournment of his scheduled administrative hearing so that his attorney could attend the proceeding. Respondents denied this request. Under the particular circumstances of this case, we find respondents abused their discretion as a matter of law by failing to grant the requested adjournment … . Matter of Bursch v Purchase Coll. of the State Univ. of N.Y., 2019 NY Slip Op 04449, CtApp 6-6-19

 

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DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined defense counsel’s failure to properly calculate the days of delay attributable to the People for the speedy trial motion constituted ineffective assistance:

Defendant was denied the effective assistance of counsel … with regard to his speedy trial motion. In his CPL 30.30(2) motion for defendant’s release, defense counsel mistakenly calculated 99 days of includable time, instead of the correct calculation of 103 days. The People conceded the 99 days, and the court released defendant. When defense counsel thereafter moved to dismiss the indictment under CPL 30.30(1), defense counsel and the prosecutor repeated that error in calculating the delay as 99 days, with the court ultimately finding only 181 days of includable time and denying the motion. Had counsel correctly calculated 103 days of chargeable time, the includable time would have totaled 185 days, rather than 181, and defendant’s speedy trial claim would have been meritorious. We have considered and rejected the People’s arguments concerning the 63-day period following defendant’s uncontested motion for release from custody, which the court found to be includable in its ultimate calculation on the dismissal motion. People v Coulibaly, 2019 NY Slip Op 04289, First Dept 5-30-19

 

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PLAINTIFF SUED DEFENDANT ATTORNEYS ALLEGING INACCURATE ADVICE CAUSED HER TO FILE FOR BANKRUPTCY, BECAUSE THE LEGAL MALPRACTICE ACTION ACCRUED WHEN PLAINTIFF FILED FOR BANKRUPTCY, THE LAWSUIT BECAME PART OF THE BANKRUPTCY ESTATE AND PLAINTIFF WAS THEREBY STRIPPED OF THE CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the capacity to sue the defendant attorneys for legal malpractice. The lawsuit alleged the attorneys gave inaccurate advice which caused plaintiff to file for bankruptcy on March 20, 2012. Because plaintiff’s legal malpractice action accrued on the day she filed for bankruptcy, and the lawsuit was not listed as an asset, the lawsuit became part of the bankruptcy estate:

The commencement of a bankruptcy proceeding creates an “estate” that is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case” (11 USC § 541[a][1]…). “Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate” … . “Although federal law determines when a debtor’s interest in property is property of the bankruptcy estate, property interests are created and defined by state law”… . Causes of action that accrue under state law prior to the filing of a bankruptcy petition, as well as those that accrue as a result of the filing, are property of the estate … . “[A] debtor’s failure to list a legal claim as an asset in his or her bankruptcy proceeding causes the claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing the claim on his or her own behalf” … . Burbacki v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 2019 NY Slip Op 04128, Second Dept 5-29-19

 

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PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED, THE COURT GRANTED THE MOTION BASED UPON REMARKS MADE BY DEFENSE COUNSEL DURING SUMMATION, REMARKS TO WHICH NO OBJECTION HAD BEEN MADE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 4404 (a) to set aside the jury verdict in this personal injury case should not have been granted. The jury found that plaintiff did not suffer a serious injury within the meaning of the no-fault law (Insurance Law § 5102(d)), and awarded plaintiff $50,000 for lost wages, reduced by $25,000 for failure to wear a seatbelt. The trial judge granted the motion in the interest of justice primarily based upon comments made by defense counsel during summation, comments to which no objection was made:

… [T]he Supreme Court identified eight specific statements made by defense counsel in his closing that the court characterized as improper, in addition to the remarks quoted above. However, none of these statements were objected to. We recognize that common courtesy requires that an attorney allow opposing counsel the opportunity to argue his or her case to the jury without undue or repetitive interruptions. Nevertheless, where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection, to direct the jury to disregard any improper remarks, and to admonish counsel from repetition of improper remarks … . Where objection is not, or cannot appropriately be, interposed during summation, counsel should, upon the conclusion of the summation, make appropriate objections, seek curative instructions, or request a mistrial … . Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial … . This standard was not met in this case. We stress that the plaintiff’s counsel made no complaint regarding the allegedly prejudicial nature of the defendant’s closing statement until after an adverse verdict was rendered. The verdict that the plaintiff did not sustain a serious injury was supported by the evidence, and the jury had ample reason to reject the plaintiff’s claims and accept the arguments of the defendants.

Accordingly, we reverse the order insofar as appealed from, deny the branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages, and reinstate the jury verdict. Kleiber v Fichtel, 2019 NY Slip Op 03778, Second Dept 5-15-19

 

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DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department reversed defendant’s convictions by guilty plea because defense counsel had a conflict of interest:

The defendant was charged under Indictment No. 13-00668 with murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The defendant was later charged under Indictment No. 14-00627 with assault in the second degree and assault in the third degree. Following a pretrial hearing on Indictment No. 13-00668, the defendant’s counsel (hereinafter the attorney), who represented the defendant on the charges under both Indictment Nos. 13-00668 and 14-00627, learned that he had a conflict of interest with the defendant, as the attorney’s law office also represented, on unrelated charges, the prosecution’s principal witness in the case under Indictment No. 13-00668. The witness was to testify that he saw the defendant shoot and kill the unarmed victim. The County Court granted the attorney’s motion to be relieved as defense counsel in the case under Indictment No. 13-00668. However, the attorney remained as the defendant’s counsel on the charges under Indictment No. 14-00627.

The defendant ultimately pleaded guilty to certain charges on both indictments in exchange for a reduced sentence.

… The defendant was denied his right to effective assistance of counsel when the attorney, who had been relieved as the defendant’s counsel on Indictment No. 13-00668 because of a conflict of interest with the prosecution’s principal witness, made a plea offer with respect to that indictment . The defendant failed to receive representation that was conflict-free and singlemindedly devoted to his best interests as required by both the Constitution of the United States and the New York State Constitution … . People v Hill, 2019 NY Slip Op 03810, Second Dept 6-15-19

 

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DEFENDANT’S PAPERS SUFFICIENTLY RAISED A QUESTION WHETHER HE WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE OF COUNSEL’S CONFLICT OF INTEREST, DENIAL OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION WITHOUT A HEARING WAS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, over a dissenting opinion by Judge Stein, determined that defendant was entitled to a hearing on his motion to vacate his conviction on the ground his attorney (Chabrowe) was ineffective because of a conflict of interest. Defendant alleged a party (Salaam) who was present at the scene of the depraved indifference murder committed by defendant was represented by Chabrowe and had paid Chabrowe’s fees on defendant’s behalf:

Although defendant had informed the trial court during the Gomberg inquiry that he or his family had hired Chabrowe, he alleged that Salaam paid Chabrowe to represent defendant, resulting in an undisclosed and “unwaivable” conflict, and that Chabrowe failed to explain any possible conflict of interest related to Salaam’s payment of defendant’s legal fees. In addition to his own affidavit, defendant submitted an affirmation from his current appellate counsel, who relayed details of a conversation he affirmed he had with Chabrowe about the payment of defendant’s legal fees. Defendant also relied on recorded prison phone calls, which purportedly corroborate defendant’s allegation that Salaam hired and paid for his attorney. * * *

We review the summary denial of a CPL 440.10 motion under an abuse of discretion standard. On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. People v Brown, 2019 NY Slip Op 03404, CtApp 5-2-19

 

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ASSIGNED COUNSEL’S FAILURE TO FILE A NOTICE OF APPEAL IN A NEGLECT PROCEEDING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, FAMILY COURT TO ISSUE REPLACEMENT ORDER FROM WHICH AN APPEAL MAY BE TAKEN (SECOND DEPT).

The Second Department determined that assigned counsel’s failure to file a notice of appeal in a neglect proceeding constituted ineffective assistance:

“A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Further, “certain Family Court proceedings, although civil in nature, implicate constitutional due process considerations because they involve issues relating to the custody and welfare of children” … .

Here, the father demonstrated that his assigned counsel’s failure to timely file a notice of appeal from the order of fact-finding and disposition constituted ineffective assistance of counsel. Under the circumstances of this case, reversal of the order appealed from is warranted, and we grant the father’s motion to vacate the order of fact-finding and disposition and remit the matter to the Family Court … . Upon remittitur, the court should issue a replacement order of fact-finding and disposition so that the father’s time to appeal will run anew. Matter of Ricardo T. (Ricardo T.), 2019 NY Slip Op 03347, Second Dept 5-1-19

 

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QUESTIONS OF FACT IN THIS ATTORNEY’S FEES DISPUTE WHETHER THERE WAS AN ORAL AGREEMENT TO RETURN THE UNEXHAUSTED PORTION OF THE RETAINER PAID BY PLAINTIFF AND WHETHER THE VOLUNTARY PAYMENT DOCTRINE APPLIED (FIRST DEPT).

The First Department determined defendant-attorneys failed to eliminate questions of fact about whether there was an oral agreement to return the unexhausted portion of the $176,500 retainer plaintiff paid for representation in an employment discrimination case, and whether the voluntary payment doctrine applied:

It is undisputed that defendants never provided plaintiff with a written agreement, as required under 22 NYCRR 1215.1. In addition, [defendant-attorney] Herman, in his deposition testimony, admitted that he never provided any itemization of the time spent working on plaintiff’s case, even when plaintiff’s counsel requested it. Thus, defendants failed to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … .

Defendants also failed to establish that plaintiff’s claim is barred by the voluntary payment doctrine, which “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, rather than any “deposits” towards a retainer, they failed to establish that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him  … . Plaintiff also averred that defendants told him that part of the payments would be used towards a trial and an appeal, which never occurred. Since defendants allegedly intended to keep the payments, regardless of any trial or appeal, there are material issues of fact whether plaintiff made the payments “with full knowledge of the facts”… or based on a mistake of material fact … . Dubrow v Herman & Beinin, 2019 NY Slip Op 03297, First Dept 4-30-19

 

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