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STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT).

he Second Department determined a stipulation of settlement entered by plaintiff’s attorney was a binding contract. The fact that plaintiff changed her mind before the stipulation was filed was of no consequence. Plaintiff made no effort to demonstrate the contract was invalid due to duress, fraud, mistake or overreaching:

We agree with the Supreme Court’s determination to deny the plaintiff’s motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Here, there is no dispute that on October 30, 2015, the plaintiff’s former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf … . Contrary to the plaintiff’s contention, the stipulation of discontinuance clearly evidenced the plaintiff’s intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 … , even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable … . Demetriou v Wolfer, 2018 NY Slip Op 07288, Second Dept 10-31-18

CIVIL PROCEDURE (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/DISCONTINUANCE (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/STIPULATIONS (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/CONTRACT LAW (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/CPLR 2103, CPLR 3217 (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/ATTORNEYS STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT)

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DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT).

The Second Department determined plaintiff did not submit sufficient proof of damages stemming from the alleged breach of a home improvement contract, and the restitution and punitive damages awards were improper. The statutory General Business Law awards, including attorney’s fees, were applicable:

… [T]he plaintiff failed to meet her burden of proving damages for breach of contract. The appropriate measure of damages for breach of a home improvement contract by the contractor for defective construction is the cost to repair the defects … , as of the date the cause of action accrued … . Here, the plaintiff did not proffer competent evidence to establish her costs to repair the defendants’ defective work as of the date the cause of action accrued … . Accordingly, the damages award in the sum of $9,358.96 for breach of contract must be set aside.

We also agree with the defendants that the jury improperly awarded the sum of $17,730 as restitution damages pursuant to General Business Law § 772, representing the total sum paid by the plaintiff under the home improvement contract before the defendants abandoned the project, since restitution damages are not provided for under that statute … .

Further, we agree with the defendants that the plaintiff is not entitled to recover punitive damages. Although the jury found that the defendants were liable for breach of contract, the plaintiff failed to establish that the defendants’ conduct was egregious, directed toward the plaintiff, and part of a pattern directed at the public … . Moreover, to the extent that the plaintiff’s case rested on allegations of fraud, she failed to establish that the defendants’ conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages … . Crippen v Adamao2018 NY Slip Op 07287, Second Dept 10-31-18

CONTRACT LAW (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/EVIDENCE (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/DAMAGES (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/FRAUD (HOME IMPROVEMENT CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/HOME IMPROVEMENT CONTRACT DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/GENERAL BUSINESS LAW (HOME IMPROVEMENT CONTRACTS, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/LICENSES (HOME IMPROVEMENT CONTRACTORS, (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/PUNITIVE DAMAGES (BREACH OF CONTRACT, FRAUD, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))

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DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s convictions for two separate robberies which were tried together, determined that one of the lineup identification procedures violated defendant’s right to counsel. The detective who conducted the lineup was aware defendant had an attorney but did not notify the attorney of the impending lineup:

The detective who conducted the lineup violated the defendant’s right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

… [T]he paramount consideration is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its verdict of guilt on the remaining counts in a meaningful way … . Here, we cannot conclude from the evidence presented that there was no such reasonable possibility. People v Johnson, 2018 NY Slip Op 07147, Second Dept 10-24-18

CRIMINAL LAW (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/LINEUPS (RIGHT TO COUNSEL, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))

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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” …

Here, contrary to the defendant’s contention, the complaint adequately alleged the required element of causation. Specifically, the complaint, construed liberally… , alleged that the defendant proximately caused the plaintiff damages by, among other things, negligently failing … to assert a specific performance cause of action, on which the plaintiff would have prevailed. …

However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct”… .

… [Plaintiff’s] allegations do not set forth any facts from which an intent to deceive him could be inferred … . Aristakesian v Ballon Stoll Bader & Nadler, P.C., 2018 NY Slip Op 07084, Second Dept 10-24-18

NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/JUDICIARY LAW (ATTORNEYS, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/ATTORNEYS (MALPRACTICE, JUDICIARY LAW, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined that defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds. Although deportation was mandatory, defendant was told only that he may be deported:

Defendant was deprived of effective assistance of counsel when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that his plea would have “immigration consequences,” would “impact his ability to stay in the country” and “will probably very well end up with [defendant] being deported from this country” … .

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea … , and we hold this appeal in abeyance for that purpose. People v Johnson, 2018 NY Slip Op 07072, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds because he was not adequately warned of the deportation consequences:

Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that deportation was a possibility … .

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold the appeal in abeyance for that purpose. People v Rodriguez, 2018 NY Slip Op 07061, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two judge dissent, determined that missing the deadline for filing an application for leave to appeal to the Court of Appeals does not deprive defendant of his or her constitutional right to effective assistance of counsel or due process. Therefore the defendant is not entitled to a writ of error coram nobis or an exception to the time limits in Criminal Procedure Law 460.30:

In People v Andrews (23 NY3d 605, 616 [2014]), we held that counsel’s failure to file a timely criminal leave application (CLA) to this Court within the thirty-day statutory time frame provided by CPL 460.10 (5) (a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of a constitutional right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments of the United States Constitution. In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA. We left open the question of whether a more protective rule should be recognized under the New York State Constitution (id. at 616). Today, we hold the same rule applies under article I, section 6 of the New York State Constitution. Thus, defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a CLA seeking leave to appeal to this Court. * * *

Given our history paralleling our jurisprudence with that of the federal courts in affording defendants meaningful review on appeals, and without any reason to deviate from that tradition today, we hold that there is no state constitutional right to legal representation on an application for leave to appeal to this Court. People v Grimes, 2018 NY Slip Op 07038, CtApp 10-23-18

CRIMINAL LAW (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/APPEALS (CRIMINAL LAW, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/ATTORNEYS (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/RIGHT TO COUNSEL (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CORAM NOBIS (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/INEFFECTIVE ASSISTANCE (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))

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THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant’s petition requesting a de novo jury trial on whether defendant is mentally ill should have been granted. The First Department held that the exception to the mootness doctrine applied to allow appeal, the denial of the petition was appealable as of right, and the remarks of defense counsel and the testimony of the defense expert at the hearing to the effect defendant is mentally ill did not waive defendant’s right to a trial de novo:

This case satisfies the exception to the mootness doctrine because there is “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Commitment and retention proceedings generally involve orders of short duration, which typically evade review … . Moreover, the issue before us is substantial, as it requires us to decide whether statements by defendant’s counsel and his expert could operate to deprive a defendant of his statutory right to demand a jury trial de novo on the “basic liberty issue” of whether he can be confined … . …

… [T]there can be no serious dispute that the order of the motion court, which denied defendant the opportunity to present his case before a jury, as provided for under CPL 330.20(16), affected a substantial right. * * * Since the motion court’s order affected a substantial right of defendant, we hold that his appeal is properly before us as one taken as of right under CPLR 5701(a)(2)(v). * * *

Here, defendant timely expressed his dissatisfaction with a recommitment order that was based on a threshold finding that he had a mental illness. Once defendant met those core requirements, he was entitled to a de novo trial at which a jury would decide whether he was mentally ill based on the evidence then existing. Matter of New York State Off. of Mental Health v Marco G., 2018 NY Slip Op 06998, First Dept 10-18-18

CRIMINAL LAW (CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/APPEALS (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MOOTNESS DOCTRINE (APPEALS, CRIMINAL LAW, CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))

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PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application to impose sanctions against defendant’s attorney for frivolous conduct should have have been granted:

… [T]he Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130-1.1. Although “[a]n agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” … , the defendant, through her attorney, moved to set aside the prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by the affidavit of support. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence.

The conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130-1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation … . Tamburello v Tamburello, 2018 NY Slip Op 06961, Second Dept 10-17-18

FAMILY LAW (PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/ATTORNEYS (SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/FRIVOLOUS CONDUCT (ATTORNEYS, SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))

,

DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined defendant's request to represent himself after 11 jurors had been selected was properly rejected as untimely:

… [P]rior to opening statements, but after 11 jurors were selected and sworn, defendant sought to invoke his right to proceed pro se. As set forth in the seminal case of People v McIntyre, there is a three-prong analysis to determine when a defendant in a criminal case may invoke this right: “(1) the request [must be] unequivocal and timely asserted, (2) there [must have] been a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must] not engage[] in conduct which would prevent the fair and orderly exposition of the issues” (36 NY2d 10, 17 [1974]). This appeal relates to the first prong — specifically, we must consider whether defendant's request was untimely as a matter of law because it was made after commencement of the trial. We hold that, in conformity with the statutory scheme set forth in the Criminal Procedure Law, the jury trial has commenced when jury selection begins. Accordingly, the trial court's determination that defendant's request to proceed pro se, made near the conclusion of jury selection, was untimely was not error. * * *

… [A]a request to represent oneself in a criminal trial is timely where the application to proceed pro se is made before the trial commences. The Criminal Procedure Law defines the commencement of trial as the beginning of jury selection. Where 11 jurors had been selected and sworn as trial jurors before defendant's request to proceed pro se was made, defendant's request was untimely. As a result, there was no legal error in the trial court's determination that the request to represent himself was untimely and in its denial of such request without further inquiry. People v Crespo, 2018 NY Slip Op 06849, CtApp 10-16-18

CRIMINAL LAW (DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/ATTORNEYS (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))

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