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DEFENDANT AND DEFENSE COUNSEL ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO A WARRANT APPLICATION FOR THE COLLECTION OF DNA EVIDENCE, YOUTUBE VIDEO NOT PROPERLY AUTHENTICATED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant was entitled to notice and an opportunity to be heard in opposition to a warrant application for the collection of DNA evidence. Defendant was incarcerated and represented on another matter at the time of the warrant application. The First Department also noted that a Youtube video admitted into evidence was not properly authenticated:

In general, search warrant applications are made ex parte … . However, as explained in Matter of Abe A. (56 NY2d 288 [1982]), special rules apply to evidence to be taken from a suspect’s body, such as blood or DNA samples.

The hearing court excluded defense counsel based on its understanding that the discussion of notice in Abe A. applied only to the first “discrete level” of Fourth Amendment analysis identified in that case, involving “the seizure of the person necessary to bring him into contact with government agents,” and not the second level, involving “the subsequent search and seizure for the evidence” (id. at 295 [internal quotation marks omitted]). …

Nothing in the Court’s opinion suggests a basis for applying the “elementary tenet of due process” described by the [Abe A.] Court only to the first part of an application for an order to physically detain a person and then make a corporeal search. … Accordingly, defendant is entitled to suppression of the DNA evidence obtained as a result of the warrant issued by the hearing court, and a new trial … .

… [A]t trial the People failed to adequately authenticate an incriminating YouTube video under the standards set forth in People v Price (29 NY3d 472 [2017]), which was decided after defendant’s trial. The authentication testimony was essentially limited to testimony that the video shown in court was the same as the one posted on YouTube and another website, and that defendant appears in the video. Accordingly, there was no authentication under any of the methods discussed in Price. People v Goldman, 2019 NY Slip Op 02976, First Dept 4-23-19

 

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DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize or investigate the obvious potential double jeopardy concern at the time of remittal for, if she had, she would have determined — as the People concede — that defendant had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

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LEGAL MALPRACTICE COUNTERCLAIM SHOULD HAVE BEEN DISMISSED, SPECULATION ABOUT THE RESULT OF A HEARING HAD THE LAW FIRM APPEARED IS NOT ENOUGH TO SUSTAIN A CLAIM FOR LEGAL MALPRACTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff law firm’s motion for summary judgment dismissing the legal malpractice counterclaim should have been granted. Apparently plaintiff failed to appear at a hearing on a temporary restraining order (TRO):

… [P]laintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date … . Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice … . Salans LLP v VBH Props. S.R.L., 2019 NY Slip Op 02611, First Dept 4-4-19

 

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ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

The Second Department, resolving a split among Surrogate’s Courts, determined that the attorney who drafted the 2005 will appointing himself as executor was required to have the testator sign an acknowledgment the testator had been informed that the failure to comply with statutory disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions:

The 2004 amendment [of Surrogate’s Court Procedure Act (SCPA) 2307-a] was intended, as reflected in both its text and in its legislative history, to require that the testator be informed that, absent the testator’s acknowledgment of receipt of the required disclosures, the attorney-executor would receive only one-half of the commissions otherwise payable. That the Legislature inadvertently included this fourth disclosure requirement only in model forms and not in the subdivision dealing directly with the required disclosures was an oversight, as is confirmed by the 2007 amendment and its legislative history … . …

At bar, the instrument signed by the testator in 2005 did not include an acknowledgment that he had been informed that the failure to comply with the disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions. Therefore, we agree with the Surrogate’s Court’s determination that the petitioner is entitled to only one-half of the statutory executor’s commissions … . Matter of Brier, 2019 NY Slip Op 02516, Second Dept 4-3-19

 

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DEFENDANT WAS NOT AFFORDED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DESPITE COUNSEL’S LIMITED COMMUNICATION WITH DEFENDANT, COUNSEL’S NOT ACTING UNTIL THE APPEAL WAS ON THE DISMISSAL CALENDAR, AND COUNSEL’S SUBMISSION OF A MINIMAL BRIEF WITH SIX LINES OF TEXT IN THE STATEMENT OF FACTS AND NO CITATIONS TO THE RECORD, WHICH INCLUDED A 4000 PAGE TRIAL TRANSCRIPT (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two separate, extensive dissenting opinions, determined defendant was not afforded ineffective assistance by his appellate counsel. The majority acknowledged that the appellate brief was “terse” and was not a model to be emulated, but noted the brief raised substantive issues that were addressed by the Appellate Division on the merits. The failure to raise the harsh and excessive sentence issue, and the failure to seek review by the Court of Appeals did not constitute ineffective assistance:

FROM JUDGE RIVERA’S DISSENT:

… [D]efendant maintains that counsel was ineffective because he initially failed to perfect the appeal, causing the Appellate Division to place the matter on the court’s Dismissal Calendar, thus risking the loss of defendant’s only appeal as of right … .

… [C]ounsel failed to communicate at all with his client in the three years following his appointment to represent defendant, and only as a late-day response to the Dismissal Calendar notification.  … * * *

The failings of the brief are substantial.  … The brief is barely 20 double-spaced pages, including separate pages for the cover, tables of contents and cases, CPLR 5531 statement, and issues presented. … Inexplicably, at the end of the facts section, appellate counsel inserted a photocopy of a six-page letter from trial counsel to the judge requesting an adjournment. The factual recitation consists of two pages and six lines of text. There is not a single citation in this section to the record on appeal, as required by the 1st Department’s Local Rule § 120.8 (b)(4) which requires an appellant’s brief to include a statement of facts “with appropriate citations to the . . . record.” This hardly seems adequate given defendant appealed from a judgment following a three-month joint trial with two co-defendants, resulting in a trial transcript spanning over 4,000 pages, and involving multiple serious counts, including murder. In contrast, the People submitted a brief over 175 pages long, with 60 pages solely devoted to the facts. People v Alvarez, 2019 NY Slip Op 02383, CtApp 3-28-19

 

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DEFENDANT WAS HOUSED FIVE HOURS AWAY FROM THE COURT AND HIS ATTORNEY, REPEATED REQUESTS TO MOVE DEFENDANT CLOSER WERE GRANTED BUT NOT COMPLIED WITH, DEFENDANT MOVED TO WITHDRAW HIS PLEA AT SENTENCING, GIVEN THE POSSIBILITY DEFENDANT HAD EFFECTIVELY BEEN DEPRIVED OF HIS RIGHT TO COUNSEL, INQUIRY INTO THE VOLUNTARINESS OF OF THE PLEA SHOULD HAVE BEEN CONDUCTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the sentencing judge should have inquired into the voluntariness of defendant’s guilty plea before accepting it. The defendant had been housed more than one hundred miles from the court and his attorney. Repeated requests to move the defendant closer to allow consultation with his attorney were granted but not complied with. When the court set the matter down for trial anyway, the defendant pled guilty:

The Supreme Court ordered that the defendant be moved to Rikers Island, or at a minimum, a correctional facility closer to the court. The court issued numerous orders over the following two weeks directing that the defendant be moved, none of which was complied with. Each appearance required the defendant to travel at least five hours each way. Defense counsel continued to argue that the Department of Corrections and Community Supervision was violating the defendant’s constitutional rights to consult with his attorney and to defend this case. The court noted that it would be nearly impossible to hold a jury and try the case under these conditions. The court nevertheless stated that the trial would commence, regardless of where the defendant was housed. The very next court date, the defendant agreed to plead guilty.

Two weeks later, at the sentencing, the defendant made an application to withdraw his plea, contending that he had entered the plea involuntarily, given the circumstances and his lack of access to his counsel. The Supreme Court denied the application without engaging in any inquiry of the defendant, other than to comment on the favorable plea offer secured by defense counsel.\

Under the circumstances, it cannot be said that the Supreme Court was able to make an informed determination as to the question of the voluntary nature of the defendant’s plea without conducting such an inquiry. The record substantiates the defendant’s claim that his plea was effectively coerced by the ongoing violation of his Sixth Amendment right to counsel and, thus, a genuine factual issue as to the voluntariness of the plea existed that could only be resolved after a hearing. Under these circumstances, the court should have conducted a hearing to explore the defendant’s allegations in order to make an informed determination … . People v Hollmond, 2019 NY Slip Op 02354, Second Dept 3-27-19

 

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HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on that aspect of his motion to vacate the judgment of conviction on ineffective assistance of counsel grounds. Defendant alleged defense counsel told the jury that defendant would testify without first consulting with defendant:

We … conclude … that defendant is entitled to a hearing with respect to whether counsel was ineffective in telling the jury that defendant would testify at trial. In support of his motion, defendant submitted his own affidavit stating that his trial counsel never discussed with him whether testifying would be a good or bad idea, and that he never told counsel that he would testify at trial, and that trial counsel nevertheless told the jury that defendant would testify. Defendant’s account is supported by the affirmation of defendant’s appellate counsel, who stated that trial counsel admitted that defendant did not tell him before trial that he would testify. Thus, defendant’s allegations are potentially supported by other evidence, and “it cannot be said that there is no reasonable possibility that [they are] true” … . We therefore conclude that a hearing is required to afford defendant an opportunity to prove that trial counsel did not discuss with him whether he would testify before informing the jury that defendant would do so, and that there was no strategic or tactical explanation for telling the jury that defendant would testify … . People v Pendergraph, 2019 NY Slip Op 02212, Fourth Dept 3-22-19

 

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DOCUMENTS SOUGHT BY PETITIONER WERE EXEMPT FROM DISCLOSURE BASED UPON THE ATTORNEY-CLIENT PRIVILEGE, THE ATTORNEY WORK PRODUCT AND THE INTER-, INTRA-AGENCY COMMUNICATION EXEMPTIONS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined emails between the governor’s office, counsel and Department of Transportation (DOT) employees concerning a gas station sublease which had been held by petitioner, but which was terminated by DOT, were exempt from disclosure based upon attorney-client privilege, attorney work-product, and the inter-, intra-agency communication exemption:

In determining whether a communication is protected by the attorney-client privilege, “the critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client” … . In that regard, inasmuch as facts are the foundation of legal advice, the attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged … . Each of the emails at issue are communications between counsel in the Governor’s Office and DOT employees that contain or reference factual information relevant to counsel providing legal advice regarding the proposed termination of the sublease. Accordingly, we conclude that the emails are protected by the attorney-client privilege and, therefore, Supreme Court erred in ordering their disclosure.

Respondents further contend that preliminary drafts of the letter that was ultimately sent terminating the sublease are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . The letters are drafts of the final termination notice that incorporate counsel’s recommendations and that were circulated in furtherance of the decision-making process prior to a final determination; accordingly, they are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . Matter of Gilbert v Office of the Governor of the State of N.Y., 2019 NY Slip Op 02189, Third Dept 3-21-19

 

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COURT SHOULD HAVE INQUIRED INTO FATHER’S ELIGIBILITY FOR ASSIGNED COUNSEL IN THE CONTEMPT PROCEEDINGS STEMMING FROM FATHER’S FAILURE TO PAY CHILD SUPPORT, FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined father was deprived of is right to counsel in a contempt proceeding stemming from his failure to pay child support:

A respondent in a contempt proceeding before the Family Court “has the right to the assistance of counsel,” including “the right to have counsel assigned by the court” if “he or she is financially unable to obtain the same” (Family Ct Act § 262[a]). “Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel” … . “The deprivation of [a parent’s] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position” … .

We agree with the father’s contention that he was deprived of his right to counsel. After the Support Magistrate adjourned the hearing for the express purpose of allowing the father to retain counsel, the father appeared at the next hearing date without counsel and informed the Support Magistrate that he could not afford to hire an attorney because he had lost his job following the last court date. The Support Magistrate should have inquired into the father’s current financial circumstances, including his expenses, to determine whether he had become eligible for assigned counsel … . After the matter was referred to the Family Court, the court should have inquired into the father’s financial circumstances, including his expenses, to determine whether he was eligible for assigned counsel in light of his contention that he could not afford to retain an attorney because he was unemployed … . Although the court later assigned the father an attorney, the court failed to provide the “attorney a reasonable opportunity to appear,” as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father … . Indeed, the court denied the assigned attorney’s request for an adjournment … . Matter of Worsdale v Holowchak, 2019 NY Slip Op 02104, Second Dept 3-20-19

 

NONPARTY LAW FIRM SHOULD HAVE BEEN ALLOWED TO WITHDRAW AS COUNSEL FOR DEFENDANTS BASED UPON DEFENDANTS’ FAILURE TO PAY REASONABLE ATTORNEY’S FEES AND FAILURE TO COOPERATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty law firm, Kaufman, should have been allowed to withdraw as counsel for defendants T & V and Komninos based upon defendant’s failure to pay attorney’s fees and failure to cooperate:

The Supreme Court improvidently exercised its discretion in denying the law firm’s unopposed motion for leave to withdraw as counsel for T & V and Komninos. An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][5] … ). Likewise, an attorney may withdraw from representing a client if the client “fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][7] … ).

Here, the law firm established that T & V and Komninos failed in their obligation to pay the legal fees earned by the law firm and further failed to cooperate in their representation. Moreover, T & V and Komninos did not oppose that branch of the law firm’s motion which was for leave to withdraw as their counsel. Accordingly, that branch of the motion which was for leave to withdraw as counsel for T & V and Komninos should have been granted … . Villata v Kokkinos, 2019 NY Slip Op 02143, Second Dept 3-20-19

 

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