You are here: / Attorneys

LAW FIRM ENTITLED TO ATTORNEY’S FEES FROM ADDITIONAL DEFENDANTS WHO DID NOT SIGN THE RETAINER AGREEMENT, THE ADDITIONAL DEFENDANTS BENEFITED FROM THE SETTLEMENT AGREEMENT REACHED BY THE LAW FIRM AND THE ADDITIONAL DEFENDANTS HAD SIGNED THE SETTLEMENT AGREEMENT (FIRST DEPT).

The First Department determined the law firm, SGA, was entitled to attorney’s fees and expenses from “additional defendants” who did not sign the retainer agreement but who benefited from the law firm’s work:

In a prior appeal in index no. 153449/14, this Court recognized that an award of attorneys’ fees and expenses against additional defendants pursuant to the common fund doctrine was appropriate, because, although they did not sign the retainer agreement with plaintiffs’ counsel (SGA), additional defendants “signed a settlement agreement obtained by SGA entitling [them] to receive a pro-rata payout from the proceeds of the sale of a building in which [they] had invested” … . Additional defendants received a “substantial benefit” as a result of SGA’s efforts, i.e., funds from the liquidation of an asset (the subject property) as to which defendants had successfully excluded them for 30 years … . …

The fact that SGA has already been partially compensated by plaintiffs does not preclude a fee award, as that would be inconsistent with the purpose of the common fund doctrine to prevent unjust enrichment by “allow[ing] the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses” … . Ital Assoc. v Axon, 2018 NY Slip Op 09013, First Dept 12-27-18

 

, ,

LEGAL SENTENCE FOR A PERSISTENT FELONY OFFENDER DRASTICALLY REDUCED IN THE INTEREST OF JUSTICE PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BASED UPON APPELLATE COUNSEL’S FAILURE TO CONTEND THE SENTENCING COURT ABUSED ITS DISCRETION (FOURTH DEPT).

The Fourth Department drastically reduced defendant’s sentence pursuant to a motion for a writ of coram nobis based on appellate counsel’s failure to to contend that the sentencing court abused its discretion in finding defendant to be a persistent felony contender. The Fourth Department found that the sentencing court  was not erroneous as a matter of law because it did not act arbitrarily or irrationally. However, the Fourth Department noted that it has the authority to vacate a harsh or severe persistent felony offender finding pursuant to Criminal Procedure Law (CPL) 470.20 (6) and did so. Defendant’s 15 to life sentence was reduced to an aggregate sentence of 5 1/2 to 11:

Although defendant has a lengthy criminal history, almost all of his offenses stem from him stealing from stores to get money to support his long-standing drug habit. It does not appear from the presentence report that defendant has ever inflicted violence on anyone, and he certainly did not physically harm anyone in this case.

We note that the People never requested that defendant be adjudicated a persistent felony offender; instead, the court sua sponte ordered the persistent felony offender hearing. As noted, the People, in a pretrial plea bargain, offered defendant a sentence of concurrent indeterminate terms of incarceration of 2 to 4 years. Moreover, the judge who initially handled this case transferred it to Drug Treatment Court, which rejected defendant due to his extended period of sobriety—he had been in jail for more than a year at the time awaiting trial. Defendant thus went from having his case transferred to Drug Treatment Court, where successful completion may have resulted in reduction of the felony charges to misdemeanors, to being sentenced to 20 years to life, on the same charges [reduced to 15 to life on a prior appeal]. Such a disparity between the plea offer and the ultimate sentence militates in favor of a sentence reduction, especially for a nonviolent offender such as defendant. People v Ellison, 2018 NY Slip Op 08833, Fourth Dept 12-21-18

 

, ,

ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT OBJECT TO THE PROSECUTOR’S REMARKS AND REVERSAL IN THE INTEREST OF JUSTICE WAS NOT WARRANTED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined the prosecutor had exceeded the bounds of the propriety but the prosecutorial misconduct, which was not preserved for appeal by objection, did not warrant reversal. Two dissenting justices argued the misconduct warranted reversal:

We agree with defendant, however, that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that defendant allegedly committed and by placing his own credibility in issue while doing so. “A prosecutor may not refer to matters not in evidence or call upon the jury to draw conclusions that cannot fairly be inferred from the evidence” … and, in this case, the prosecutor strayed outside ” the four corners of the evidence’ ” when he implied that defendant committed different crimes … . Nevertheless, reversal is unwarranted where a prosecutor’s error has not substantially prejudiced a defendant’s trial … and, although the dissent is correct that we have previously admonished this prosecutor, the instant trial occurred before that admonition. Therefore, although we strongly condemn the prosecutor’s conduct during cross-examination, we conclude that it does not warrant reversal here … .

From the Dissent: We agree with defendant that the prosecutor caused him substantial prejudice during the cross-examination of a defense witness. ” It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged’ ” … . …

We further agree with defendant that remarks in the prosecutor’s summation were inflammatory and prejudicial. The prosecutor referred to defendant’s witnesses as “liars,” compounding the prejudicial effect of his improper cross-examination … . More egregiously, the prosecutor referred to defendant as a “monster” four times. People v Fick, 2018 NY Slip Op 08788, Fourth Dept 12-21-18

 

, ,

DEFENSE COUNSEL’S FAILURE TO OBTAIN EXPERT OPINION EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, THE CASE TURNED ON WHETHER DEFENDANT WAS INTOXICATED, THE INTOXILYZER RESULTS WERE INCONSISTENT, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds should have been granted:

This case turned on whether defendant was intoxicated at the time of the vehicular accident at issue, and there was a serious issue about the accuracy of the final Intoxilyzer reading, which conflicted with an earlier reading showing no intoxication. Defense counsel failed to take steps to consult with and produce an appropriate expert on breath and blood alcohol analysis to rebut the People’s proof … .

At the 440.10 hearing, trial counsel conceded that his only reason for not calling an expert was the inability of his client, who was also unable to pay counsel’s fee, to pay for an expert. He also conceded that he took no steps to obtain a court-appointed expert, and was unaware that this remedy might be available. This constituted constitutionally deficient performance … . As for the prejudice prong of an ineffective assistance claim, we find that there is a reasonable probability that calling an expert would have affected the outcome of the trial, and that the absence of expert testimony rendered the proceeding unfair under the facts of the case. People v Carter, 2018 NY Slip Op 08745, First Dept 12-20-18

 

, , ,

NOTICE OF APPEARANCE FILED BY DEFENDANT’S ATTORNEY WAIVED ANY SUBSEQUENT OBJECTION TO PERSONAL JURISDICTION IN THIS FORECLOSURE ACTION, ISSUE HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court on a ground not raised below, determined that defendant’s attorney’s notice of appearance waived any objection to personal jurisdiction over defendant:

“The filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, in November 2014, the defendant’s attorney appeared in the action on her behalf by filing a notice of appearance dated October 31, 2014, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading… . The defendant did not move to dismiss the complaint until September 2015, 10 months after filing a notice of appearance. Under those circumstances, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action … .

Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court … . Deutsche Bank Natl. Trust Co. v Vu, 2018 NY Slip Op 08629, Second Dept 12-19-18

 

,

FATHER WAS NOT ADEQUATELY INFORMED OF THE CONSEQUENCES OF PROCEEDING WITHOUT AN ATTORNEY, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this neglect proceeding, determined father was not adequately informed of his right to an attorney:

… [A]lthough the Family Court repeatedly asked the father whether he wanted to represent himself, told him that he would have to follow the same legal rules as the other parties, and cautioned him generally against self representation, the court did so without detailing the dangers and disadvantages of proceeding pro se … . More specifically, the court failed to adequately warn the father of the risks inherent in proceeding without an attorney; failed to adequately apprise the father of the critical importance of having an attorney in a child neglect proceeding, particularly where there is a related criminal matter pending; failed to adequately explore the defendant’s age, education, occupation, previous exposure to legal procedures and other factors bearing on a competent, intelligent, voluntary waiver; and failed to ensure that the father acknowledged his understanding of the perils of self-representation. Because the court failed to conduct a sufficiently searching inquiry of the father to be reasonably certain that he understood the dangers and disadvantages of giving up the fundamental right to counsel, and thus failed to ensure that the father’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Family Court, Suffolk County, for a new hearing and a new determination, after a proper inquiry into the father’s understanding of the consequences of self-representation … . Matter of Alivia F. (John F.), 2018 NY Slip Op 08649, Second Dept 12-19-18

RIGHT TO COUNSEL

,

LAW OFFICE FAILURE JUSTIFIED CONSIDERING EVIDENCE WHICH COULD HAVE BEEN PROVIDED IN SUPPORT OF THE ORIGINAL MOTION, MOTION TO RENEW PROPERLY GRANTED, HOWEVER DELAYS IN DISCOVERY WARRANTED SANCTIONS AGAINST PLAINTIFF (SECOND DEPT).

The Second Department determined law office failure was an adequate excuse for failing to present evidence in support of plaintiff’s original motion which was submitted in support of a motion to renew. However, in light of plaintiff’s delays in discovery, sanctions were appropriate:

… Supreme Court providently exercised its discretion in considering the new evidence submitted by the plaintiff in support of those branches of her motion which were for leave to renew her prior motion and her opposition to the appellants’ cross motion. Although the new facts may have been known to the plaintiff at the time of her prior motion, the plaintiff explained that the new evidence was not submitted in connection with her prior motion and opposition due to a misunderstanding by counsel that ultimately led to law office failure. * * *

“The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” … . “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … . “[T]he court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . …

… [A]though the plaintiff set forth a reasonable explanation for her failure to fully comply with the conditional order of dismissal, the fact remains that she failed to fully comply with that order, and her conduct during discovery cannot be countenanced … . Consequently, … a monetary sanction in the total sum of $5,000 is warranted to compensate the appellants for the time expended and costs incurred in connection with the plaintiff’s failure to fully and timely comply with the conditional order of dismissal … . Burro v Kang, 2018 NY Slip Op 08457, Second Dept 12-12-18

 

,

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department determined defendant was denied his right to counsel when defense counsel told the court he did not want to be a party to defendant’s motion to withdraw his guilty plea:

The defendant stated that he wished to withdraw his plea of guilty on the grounds that he was innocent and that he was coerced into pleading guilty. His attorney stated that he did not want to be a party to the motion. His attorney further stated: “I fought long and hard to get this. I thought we had this.” The court advised the defendant not to say anything further, and noted that the defendant could be charged with perjury. The court denied the defendant’s motion, and imposed sentence.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant with respect to his motion to withdraw his plea of guilty… . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion … . We further note that, in advising the defendant not to say anything further because he could be charged with perjury, the court deprived the defendant of the opportunity to present his contentions … . People v Sarner, 2018 NY Slip Op 08335, Second Dept 12-5-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW,  DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))

, ,

DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defense counsel was ineffective for failing to request a jury instruction on petit larceny as a lesser included offense of robbery. The defense theory was that defendant did not use violence to take $20.00 from the victim but rather used trickery, claiming the victim had broken defendant’s liquor bottle. Defense counsel requested a jury charge on fraudulent accosting, which is not a lesser included offense of robbery:

… [P]etit larceny, which is defined as “steal[ing] property,” qualifies in the abstract as a lesser included offense of robbery in the third degree, which is defined as “forcibly steal[ing] property” … . There is no separate crime of petit larceny “by false pretenses,” and the fact that a nonforcible taking is committed by fraud does not disqualify it as a lesser included offense of robbery.

It is clear that defense counsel’s failure to seek a petit larceny charge was not strategic. The defense strategy was to concede that a nonforcible theft occurred and seek a misdemeanor conviction. There is no merit to the People’s suggestion that counsel may have had a strategic reason for requesting fraudulent accosting but not petit larceny.

We also find that counsel’s failure to request a petit larceny charge was prejudicial. There was plainly a reasonable view of the evidence to support petit larceny. Furthermore, the evidence that the theft was forcible rather than a scam was not so overwhelming as to render a request for petit larceny futile. The victims were tourists who returned to their home country and did not testify, and the sole eyewitness’s ability to establish the element of force was in question. People v Jones, 2018 NY Slip Op 08356, First Dept 12-4-18

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSES, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSES (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ROBBERY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/PETIT LARCENY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))

, ,

THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that the communication between claimant’s counsel and the independent medical examiner (Saunders) who assessed claimant’s loss of use of his left foot, did not create the appearance of impropriety and did not warrant the preclude Sauders’ report and testimony:

Workers’ Compensation Law § 13-a (6) prohibits “the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee.” Moreover, “any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity, including a claimant, an insurance carrier, or a third[-]party administrator, that takes place or is initiated outside of the independent medical examination” … shall be filed with the Board within 10 days of the receipt of the communication … . …

Pursuant to Subject No. 046-124, the Board requires that, in addition to strictly complying with the requirements of Workers’ Compensation Law §§ 13-a (6) and 137 (1) (b), “parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional” (Workers’ Comp Bd Release Subject No. 046-124). The Board further requires that “to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative” … .

… [A]t the conclusion of Saunders’ deposition, the employer’s attorney inquired whether claimant’s attorney had communicated with him regarding the claim. Saunders responded that he had received a text message from the attorney the day before the deposition indicating that the deposition would address claimant’s schedule loss of use, but that there was no discussion with counsel. The employer’s attorney asked no further questions and made no request for claimant to produce a copy of the text message, a copy of which is not in the record. We are left then with what appears to be a limited communication between claimant’s counsel and Saunders confirming the subject of the deposition. Significantly, there is no dispute that Saunders’ ensuing deposition testimony fully comported with the report that he had previously filed with the Board — an outcome illustrating that claimant’s counsel in no way influenced Saunders’ testimony through the text message. In our view, verifying the subject of the deposition was simply ministerial in nature and does not reflect an effort to influence the witness testimony. Matter of Knapp v Bette & Cring LLC, 2018 NY Slip Op 08218, Third Dept 11-20-18

WORKERS’ COMPENSATION (THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/ATTORNEYS (WORKERS’ COMPENSATION, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION, ATTORNEYS, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy