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DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT).

The Second Department determined defendant was entitled to consideration of his pro se motion to set aside the verdict on ineffective assistance grounds. Defense counsel told the court he did not adopt the motion and didn’t think it was correct. By taking a position adverse to his client’s, defense counsel had deprived defendant of effective assistance:

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Defense counsel, by taking a position adverse to that of his client on the motion to set aside the verdict pursuant to CPL 330.30, deprived the defendant of effective assistance of counsel … . Accordingly, since the appellant has not addressed the merits of the CPL 330.30 motion in his brief, but rather, requests remittitur to the Supreme Court, we remit the matter for further proceedings on the merits of the motion and thereafter a report to this Court limited to the Supreme Court’s findings with respect to the motion and whether the defendant has established his entitlement to the relief sought in his motion. We express no opinion as to the merits of the defendant’s motion and we decide no other issues at this time. People v Freire, 2018 NY Slip Op 00564, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))

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FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT).

The Second Department determined defense counsel’s failure to ask that the jury be charged with the lesser included offense of trespass in this burglary prosecution constituted ineffective assistance. The court noted that, because defendant was a persistent violent felony offender he faced a minimum sentence of 16 to life on the burglary conviction, but a trespass conviction would entail only one year in jail. The evidence that defendant intended to steal something was weak, the mistaken-identification defense put forth by defense counsel was weak, so trespass would have been a viable alternative for the jury:

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In deciding whether to ask for submission of the lesser included offense, defense counsel was obligated to consider the possible consequences of that decision for his client. The defendant was a persistent violent felony offender who, upon his conviction of burglary in the second degree (see Penal Law § 70.02[1][b]), faced a minimum sentence of 16 years to life imprisonment… . By contrast, upon conviction of criminal trespass in the second degree, which, like the remaining charge, criminal mischief in the fourth degree, was a class A misdemeanor, the defendant faced a maximum of one year in jail. That is not to say that counsel would have been required to argue the lesser included offense in summation, but it was not reasonable for counsel to deprive the jury of the opportunity to consider it … . Given the weakness of the mistaken-identification defense, the plausibility of the lesser included offense, and the enormous sentencing disparity between a burglary conviction and a criminal trespass conviction, counsel’s failure to request submission of the lesser included offense cannot be considered part of a legitimate all-or-nothing strategy. Under the circumstances, counsel’s failure to request submission of the lesser included offense deprived the defendant of his right to meaningful representation … . People v Orama, 2018 NY Slip Op 00571, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/LESSER INCLUDED OFFENSES (INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))

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PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT).

The First Department determined defendant-attorneys’ motion to dismiss the breach of contract cause of action, alleging the failure to return the balance of fees paid, was properly denied. Plaintiff alleged there was an oral agreement to return any few balance remaining when the action was resolved. Defendants did not provide plaintiff with an accounting of the hour spent on the case:

Defendants moved to dismiss, arguing that the breach of contract claim was not adequately pleaded and that plaintiff’s claim is barred by the “voluntary payment doctrine.”

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . In the context of an attorney-client relationship, the attorney bears the burden of showing that the parties’ fee agreement was fair, reasonable, and fully known and understood by plaintiff … .

Plaintiff has sufficiently alleged a claim for breach of contract based on defendants’ failure to return the unearned balance of his retainer, pursuant to the parties’ oral agreement … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, they have not established that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him … . Nor did they submit any evidence to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … . Dubrow v Herman & Beinin, 2018 NY Slip Op 00478, First Dept 1-25-18

ATTORNEYS (FEES, CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/CONTRACT LAW (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/ATTORNEY’S FEES (CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/VOLUNTARY PAYMENT DOCTRINE (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))

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THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT).

The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege):

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege … . To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party… . “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” … . Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” … . Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Second Dept 1-24-18

CIVIL PROCEDURE (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (HE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEY-CLIENT PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))

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COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea on a writ of coram nobis, determined County Court should not have threatened defendant with the maximum sentence should she go to trial and defendant’s former appellate counsel was ineffective for failing to bring that issue up on appeal:

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During discussions regarding the People’s plea offer, the court initially advised the defendant that she faced a “total maximum [of] 60 years in state prison.” Although the court acknowledged that a “cumulative sentencing statute . . . would reduce that to probably between 30 and 40,” it later advised the defendant that “[i]f you are facing 60 years in state prison with all these counts of assault on a seven month old child then you need to discuss that offer very carefully with [defense counsel] and follow his advice.” After defense counsel advised the court that the defendant did not accept the People’s plea offer, the court told the defendant, “[t]hat’s fine. That’s what we do here. We do trials. A case like this I would almost rather have a trial than have a plea bargaining. If this is all true there is no [sentence] short of the maximum that’s appropriate that’s the problem with the case. If it isn’t true then the jury will so decide. That’s not up to me.” Later that afternoon, the defendant accepted the People’s plea offer … .

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“In order to be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently”… . Although a court may properly comment during plea negotiations regarding a defendant’s sentencing exposure upon conviction after trial, it may not explicitly threaten to sentence a defendant to the maximum term upon conviction after trial … . Under the circumstances of this case, former appellate counsel was ineffective in failing to raise the issue that the defendant’s plea of guilty was coerced by the County Court’s comments … . Since the court’s remarks were impermissibly coercive, the defendant was entitled to vacatur of her plea of guilty. People v Sanabria, 2018 NY Slip Op 00316, Second Dept 1-17-18

CRIMINAL LAW (COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/GUILTY PLEA (VACATED, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, ATTORNEYS, APPEALS, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WRIT OF CORAM NOBIS, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/CORAM NOBIS, WRIT OF (CRIMINAL LAW, APPEALS, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))

ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT).

The Second Department determined petitioner-attorney was entitled to fees earned in a medical malpractice action prior to the petitioner's suspension and disbarment. Petitioner sought the fees from substitute counsel (DMR) under a quantum meruit theory. Petitioner's failure to file a retainer statement and the absence of a fee-sharing agreement did not preclude quantum meruit recovery:

… [T]he petitioner was not precluded from recovery on the ground that he failed to file a retainer statement with the Office of Court Administration in accordance with 22 NYCRR 691.20(a)(1), since the petitioner did not seek the recovery of fees on a breach of contract theory, but solely on a quantum meruit basis … . The lack of a fee-sharing agreement between the petitioner and DMR also did not preclude the petitioner from seeking the recovery of fees against DMR … . Moreover, the petitioner did not forfeit his right to recover fees for the work he performed in the medical malpractice action prior to his suspension … . Matter of Grossbarth v Dankner, Milstein & Ruffo, P.C., 2018 NY Slip Op 00144, Second Dept 1-10-18

ATTORNEYS (FEES, QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/ATTORNEY'S FEES (QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/RETAINER STATEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/FEE SHARING AGREEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))

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COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice. Whether an investigative report in plaintiff's possession precluded recovery by alerting plaintiff to the problem with the public offering underwritten by plaintiff could not be determined on a motion to dismiss:

Plaintiff, a lead underwriter on a public offering of a Chinese corporation, claimed that defendant law firm was negligent in failing to uncover material misrepresentations made by the corporation in connection with the offering. Plaintiff sufficiently asserted that but for defendant's negligence, plaintiff would have ceased its involvement in the public offering and avoided the fees, expenses and other damages it incurred in defending against, as well as settling claims against it … .

Defendant's argument that an investigative report gave plaintiff prior constructive notice of the material misrepresentations is unavailing … . … Here, on a pre-answer motion to dismiss, although plaintiff acknowledges that it had possession of the investigative report, the information contained in the report cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel's interpretation of the information. Defendant “may not shift to the client the legal responsibility it was specifically hired to undertake” … . Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 2018 NY Slip Op 00091, First Dept 1-9-18

ATTORNEYS (MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/NEGLIGENCE (ATTORNEYS, LEGAL MALPRACTICE, COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))/LEGAL MALPRACTICE (COMPLAINT ALLEGING LEGAL MALPRACTICE STATED A CAUSE OF ACTION, WHETHER PLAINTIFF WAS AWARE OF THE PROBLEM IN TIME TO AVOID THE CONSEQUENCES, THEREBY PRECLUDING THE MALPRACTICE ACTION, COULD NOT BE DETERMINED ON A MOTION TO DISMISS (FIRST DEPT))

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DEFENDANT’S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined defendant's waiver of his right to counsel was invalid, but deemed the error harmless and upheld his conviction. The defendant repeatedly represented himself at court appearances, repeatedly allowed counsel to represent him, and repeatedly refused to continue and left the courtroom. The trial was ultimately conducted in his absence. The First Department held that the failure to make sure defendant was aware that he faced a maximum of 15 years in prison rendered the waiver of counsel invalid. However, the suppression motion was deemed to have no chance of success and the trial evidence was deemed overwhelming:

The “normal remedy for a violation of the right to counsel at a suppression hearing is a new suppression hearing, with a new trial to follow if, after the new hearing, the evidence is suppressed” … . However, a new hearing would serve no purpose, and need not be ordered, where it is clear beyond a reasonable doubt that the result at a new trial would be the same even if the defendant prevailed at the suppression hearing. …

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Even assuming counsel would some how be successful in arguing for the suppression of statements and property recovered, the evidence of defendant's guilt was overwhelming. Defendant was caught red-handed. …

Similarly, even assuming counsel would have been able to secure a more favorable Sandoval ruling, and defendant would have testified on his own behalf, the evidence overwhelmingly proved defendant knowingly and unlawfully entered the … apartment with the intent to take property. People v Rodriguez, 2018 NY Slip Op 00040, First Dept 1-2-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/WAIVER, RIGHT TO COUNSEL  (CRIMINAL LAW, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))

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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))

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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:

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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))

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