Attorneys – Page 89 – New York Appellate Digest

PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT).

The First Department imposed $5000 sanctions (each) upon plaintiff and his attorney in this matrimonial matter. The underlying action attacking a stipulation (which had already been appealed) and the appeal were deemed frivolous:

We grant defendant's request that we impose sanctions upon plaintiff and his counsel (22 NYCRR 130-1.1[a]). The action below, and the appeal before us now, both of which counsel prosecuted, are plainly without merit (22 NYCRR 130-1.1[c][1]). Moreover, this appeal constitutes plaintiff's third unsuccessful challenge in this Court to the stipulation of settlement, which the parties entered into in 2012 … . In our 2016 decision and order, which affirmed, inter alia, an award of counsel fees to defendant, we held that the award was proper based in part on plaintiff's “multiple, unsuccessful attempts to void or rescind the support provisions contained in the stipulation” … . Where a matrimonial litigant engages in a “relentless campaign to prolong th[e] litigation,” sanctions in this Court are appropriate … . Sonkin v Sonkin, 2018 NY Slip Op 00011, First Dept 1-2-18

ATTORNEYS (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/APPEALS (FRIVOLOUS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/SANCTIONS (FRIVOLOUS ACTION AND APPEAL, (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION … ND APPEAL (FIRST DEPT))/FAMILY LAW (SANCTIONS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))

January 2, 2018

Attorneys, Criminal Law, Immigration Law

DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s motion to vacate his conviction (by guilty plea) should not have been denied without a hearing. The pro se papers were deemed sufficient to raise the issues of ineffective assistance (failure to accurately inform defendant of the deportation consequences of the plea) and prejudice should defendant be deported after he had successfully sought asylum. The court found that the absence of an attorney affidavit from the motion to vacate papers was explained and should have been excused. Although defendant pled to endangering the welfare of a child, his attorney allowed an allocution on the elements of sexual abuse in the first degree:

Here, the absence of an affidavit by defendant’s counsel does not support the summary denial of defendant’s motion for three reasons.

First, defendant’s allegations are corroborated by other parts of the record … . They are corroborated by defendant’s application to naturalize, postplea, which exposed him to detection by Immigration and Customs Enforcement (ICE), since he certainly would not have made the application if he had known that he was in any danger of deportation. In addition, counsel’s failure to object to the court’s unnecessary allocution on the elements of sexual abuse in the first degree … suggests that counsel may not have accurately understood the consequences of the plea.

Second, where, as here, defendant’s application is adverse and hostile to his trial attorney, “[r]equir[ing] the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary” … .

Third, in any event, defendant explained the absence of an affidavit by his counsel … . People v Mebuin, 2017 NY Slip Op 09276, First Dept 12-28-17

CRIMINAL LAW (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))

December 28, 2017

Attorneys, Criminal Law

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been denied without a hearing. The affidavits in support of the motion raised a question whether defense counsel was ineffective for failing to interview alibi witnesses and sufficiently raised a claim of actual innocence:

We agree with the contention of defendant in his main and supplemental pro se briefs that he was entitled to a hearing on his claims of ineffective assistance of counsel and actual innocence. With respect to defendant’s claim of ineffective assistance of counsel, we conclude that nonrecord facts may support defendant’s contention that his trial counsel failed to investigate two potential alibi witnesses and was ineffective in failing to present the testimony of one or both of those witnesses. It is well settled that “[a] defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses” … . Here, defendant’s CPL 440.10 motion was supported by the police investigation report, which demonstrated that the alibi witnesses had been interviewed by the police and made statements supporting defendant’s alibi. We note that the police report was annexed to the People’s CPL 710.30 notice.

In addition, defendant submitted his own affidavit and an affidavit from one of the alibi witnesses likewise asserting facts supporting defendant’s alibi claim. While a hearing may ultimately reveal that “counsel made reasonably diligent efforts to locate the [alibi] witness[es]” and present their testimony at trial … , or that there was a strategic reason for the failure to do so… , we agree with defendant that his submissions raised factual issues requiring a hearing … .

Additionally, we conclude that County Court erred in denying defendant’s motion without holding a hearing to address defendant’s claim that the judgment of conviction should be vacated pursuant to CPL 440.10 (1) (h) based on his actual innocence of the crimes of which he was convicted… . We conclude that defendant made a prima facie showing of actual innocence sufficient to warrant a hearing on the merits … . Specifically, in support of his claim of actual innocence, he submitted competent evidence establishing an alibi through, inter alia, witnesses who, although identified before trial in a police report attached to the People’s 710.30 notice, did not testify at trial. People v Pottinger, 2017 NY Slip Op 08972, Fourth Dept 12-22-17

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ACTUAL INNOCENCE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))

December 22, 2017

Attorneys, Civil Procedure, Landlord-Tenant, Real Property Law

TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))

December 22, 2017

Attorneys, Criminal Law, Evidence

GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department determined the evidence of serious physical injury, an element of the gang assault charge, was supported by sufficient evidence presented to the grand jury. However, prosecutorial misconduct during the grand jury proceedings warranted dismissal of the indictment (the People may represent however):

We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to “readily apparent external physical injuries of which he obviously [had] personal knowledge” … .

We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired … .. The prosecutor acted improperly in repeatedly asking leading questions of his witnesses … , and in introducing hearsay evidence … . During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying … ., and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general … .. “Most egregiously,” as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim’s injuries must have resulted from “a substantial beating” … . We remind the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only . . . seek convictions but [must] also . . . see that justice is done” … . People v Blauvelt, 2017 NY Slip Op 08948, Fourth Dept 12-21-17

CRIMINAL LAW (GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, GRAND JURY, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, GRAND JURY, SERIOUS PHYSICAL INJURY, GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE TESTIMONY OF THE VICTIM WAS SUFFICIENT (FOURTH DEPT))

December 21, 2017

Attorneys, Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department determined defendant was entitled to a new Sex Offender Registration Act (SORA) risk level hearing because his attorney did not advocate his position and did not understand the availability of downward departure:

A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the defendant’s counsel “failed to litigate any aspect of the adjudication” … , and, instead, affirmatively asserted that there was no basis on which to challenge or depart from the presumptive risk level. Moreover, defense counsel’s comments suggested that there was no basis for a downward departure because the points “add[ed] up validly,” thus demonstrating a misunderstanding of the law regarding downward departures from the presumptive risk level … . These facts, as well as defense counsel’s failure to seek a downward departure under the circumstances of this case, operated to deprive the defendant of meaningful representation in the SORA proceeding … . People v Collins, 2017 NY Slip Op 08866, Second Dept 12-20-17

CRIMINAL LAW (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, SORA HEARING, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))

December 20, 2017

Attorneys

ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court determined the disqualification of plaintiffs’ counsel, D’Agostino, was required based on his hiring of an associate, Monteleon, who previously worked as a paralegal in the firm representing defendants. Even if Monteleon had not acquired client confidences, there existed the appearance of impropriety:

The Supreme Court should have granted the defendants’ motions to disqualify D’Agostino as the plaintiffs’ counsel in the instant actions. A party seeking to disqualify an attorney or a law firm for an opposing party on the ground of conflict of interest has the burden of demonstrating (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse … . When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows … . The defendants established that there is an irrebuttable presumption that Monteleon, who was a paralegal and subsequently D’Agostino’s associate, is subject to disqualification from representing the plaintiffs in these actions due to his prior employment.

Where one attorney is disqualified as a result of having acquired confidential client information in his former employment (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9), there is a rebuttable presumption that the entirety of the attorney’s current firm must be disqualified … . … There is a rebuttable presumption here that D’Agostino, who employed Monteleon as a paralegal and subsequently an associate in his solo practice, is disqualified from representing the plaintiffs. That presumption has not been rebutted by the plaintiffs, as they failed to disprove that Monteleon had the opportunity to acquire confidential information in his former employment. …

Even assuming that the irrebuttable presumption in favor of disqualification did not attach to Monteleon, disqualification of D’Agostino nonetheless is warranted. … Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification … . Moray v UFS Indus., Inc., 2017 NY Slip Op 08822, Second Dept 12-20-17

ATTORNEYS (CONFLICT OF INTEREST, ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/IMPROPRIETY, APPEARANCE OF (ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, CONFLICT OF INTEREST, ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))

December 20, 2017

Attorneys, Criminal Law

DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive three-judge dissent, determined defendant was deprived of counsel at a critical stage of the prosecution, i.e., when the People made a motion to take a buccal swap for DNA testing. The appellate division properly vacated defendant’s pleas, but should not have dismissed the indictment:

Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court — in defendant’s absence — subsequently granted both the retained defense counsel’s motion to be relieved from representing defendant for failure to pay his fee and the People’s DNA discovery motion, which it granted based on the “putative consent” it inferred from retained counsel’s silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution’s motion and did not wish to consent to giving a sample. Notwithstanding defendant’s entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant “an attorney [was] not going to be able to help,” and that there was “no basis for fighting [the test].” When defendant said he did not “know the law,” the judge responded “I know the law.” On these facts, the Appellate Division correctly determined that “the pretrial proceedings concerning the DNA test were ‘critical’ within the meaning of the law … . Accordingly, defendant was deprived his right to counsel.

We reject the dissent’s conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel’s failure to reply to the People’s motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant’s consent … . Further, as the record unambiguously shows, shortly after the court granted retained counsel’s request to withdraw — leaving defendant unrepresented — defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People’s motion [FN5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not. People v Smith, 2017 NY Slip Op 08798, CtApp 12-19-17

CRIMINAL LAW (DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/ATTORNEYS (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/DNA TESTING (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))

December 19, 2017

Attorneys, Family Law, Social Services Law

ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT).

The Second Department determined Family Court properly refused father’s untimely request to proceed pro se in this termination of parental rights proceeding:

A parent in a proceeding pursuant to Social Services Law § 384-b to terminate parental rights has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]). A parent, however, may waive the right to counsel and opt for self-representation … . However, the right to self-representation is “not . . . unfettered” … . In order to invoke the right to defend pro se, “(1) the request [must be] unequivocal and timely asserted, (2) there [must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must not have] engaged in conduct which would prevent the fair and orderly exposition of the issues”… . “An application is timely interposed when it is asserted before the trial commences'”… . “If the request is made thereafter, the right is severely constricted’ and the trial court must exercise its sound discretion and grant the request only under compelling circumstances”… .

Here, the Family Court providently exercised its discretion in denying the father’s request to represent himself since it was untimely, and the father proferred no compelling circumstances to justify the need to grant the application … . Matter of Sarah J. A. (Ramadan G. O.-A.), 2017 NY Slip Op 08661, Second Dept 12-13-17

FAMILY LAW (ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/ATTORNEYS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PRO SE (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))

December 13, 2017

Appeals, Attorneys

APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT).

The Second Department determined the appeal in this real property dispute warranted sanctions against one appellant and his attorney ($500 each). It appears that the appellants entered a stipulation of settlement in which they stated they owned real property, knowing they did not own the property. The appeal was brought after Supreme Court enforced the stipulated settlement (requiring appellants to pay $1.8 million plus costs):

We reject the appellants’ argument that they were unaware, at the time of the stipulation of settlement, that the City of Peekskill owned the subject property. Nearly two years prior to the stipulation of settlement, in a proceeding to foreclose a tax lien, in an order and judgment of the Supreme Court, Westchester County (Walker, J.), dated October 1, 2012, the City of Peekskill was granted permission to file a deed conveying the subject property to the City of Peekskill as owner in fee simple absolute. Dashley Realty appealed, and this Court affirmed the judgment … . The appellants failed to demonstrate sufficient cause to vacate the stipulation of settlement, as their purported mistake in not knowing about the City’s ownership when they entered into the stipulation of settlement on August 11, 2014, is belied by the order and judgment dated October 1, 2012, Dashley Realty’s appeal from that judgment, and attorney George W. Echevarria’s representation of Dashley Realty on that appeal.

Under the circumstances of this case, including, but not limited to, the appellants’ attempt to vacate the stipulation of settlement based upon their purported mistake, we find that much of the conduct of the appellant Cirilo Rodriguez and attorney George W. Echevarria, including their prosecution of this appeal, which is based upon the same meritless arguments advanced on the cross motion to vacate the stipulation of settlement, has been “undertaken primarily to delay or prolong the resolution of the litigation” (22 NYCRR § 130—1.1[c][2]). We find that this conduct warrants sanctions in the amount of $500 each on the appellant Cirilo Rodriguez and attorney George W. Echevarria … . ATS-1 Corp. v Rodriguez, 2017 NY Slip Op 08651, Second Dept 12-13-17

ATTORNEYS (APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))/APPEALS (SANCTIONS, APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))/SANCTIONS (ATTORNEYS, APPEALS, APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))