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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):

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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” … .

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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))

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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:

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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))

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:

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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))

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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:

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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.

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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))

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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:

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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))

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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):

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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))

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SECOND DEPT ASKED FOR FURTHER SUBMISSIONS TO DETERMINE WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT).

The Second Department asked for further submissions to determine whether sanctions should be imposed for a frivolous appeal. After a judgment of foreclosure against the mortgagor, the mortgagor deeded the property to plaintiff. Plaintiff then brought a motion to quiet title which was dismissed based upon the foreclosure documents. The plaintiff then appealed, despite having brought identical proceedings in another matter which also had gone up on appeal:

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Here, as in Carbone v Deutsche Bank Natl. Trust Co., a case involving the same plaintiff and almost identical facts, by submitting the judgment of foreclosure and sale and other documents from the prior foreclosure action, the Bank established that it had a defense founded upon documentary evidence; namely, that Carbone took the property subject to a valid judgment of foreclosure and sale, and that the instant action is an improper collateral attack upon the judgment … . Thus, since the Bank established that it had a defense founded upon documentary evidence which conclusively disposed of the plaintiff’s causes of action as a matter of law… , the Supreme Court properly granted the Bank’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint, and properly denied Carbone’s cross motion for summary judgment on the complaint.

In addition, since the plaintiff has raised arguments on this appeal that appear to be “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law” (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous… . Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the plaintiff. Carbone v US Bank N.A., 2017 NY Slip Op 08653, Second Dept 12-13-17

 

APPEALS (SECOND DEPARTMENT ASKED FOR FURTHER SUBMISSIONS TO DETERMINED WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT))/FRIVOLOUS APPEAL  (SECOND DEPARTMENT ASKED FOR FURTHER SUBMISSIONS TO DETERMINED WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT))

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THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the trial judge should have granted the People’s application to relieve defense counsel. Defense counsel had interviewed a prosecution witness alone. During the interview the witness had recanted his identification of the defendant as the shooter. Defendant wanted defense counsel to continue representing him but did not waive the conflict:

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… [D]efense counsel’s actions of interviewing the prosecution’s main witness alone and being the only person who could testify to the witness’s recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement … . Under the circumstances, especially in light of the defendant’s refusal to waive any conflict, the County Court erred in denying the People’s application to relieve defense counsel. People v Lawrence, 2017 NY Slip Op 08538, Second Dept 12-6-17

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT OF INTEREST. THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, , THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s attorney’s conflict of interest deprived defendant of effective assistance of counsel and, upon retrial, the testimony which resulted from the conflict can not be presented:

 

In this observation drug sale case, defendant, an alleged seller, was appointed the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel’s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel’s simultaneous representation of defendant at the time of Jones’s plea constituted an actual conflict, we reverse and remand for a new trial. In addition, because Jones’s testimony is interwoven with a violation of defendant’s New York State and Federal right to the effective assistance of counsel, we preclude the People from using Jones’s testimony at any retrial. * * *

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During cross-examination, Jones admitted that he did tell the Assistant District Attorney, in his office, that defendant did not sell him crack cocaine. During redirect, Jones explained that he believed he did not have to tell the prosecutor the truth in his office, but that, now that he was under oath, he was “not going to perjure [him]self. . . .” * * *

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Here, defendant’s right to the effective assistance of counsel was infringed by an actual conflict. At the time of their simultaneous representation and Jones’s plea, the interests of defendant and Jones were clearly opposed. Jones had an interest in avoiding a criminal conviction by allocuting to identify defendant as one of the people who had sold him drugs. Defendant had an interest in not being so identified. Counsel was thus placed in the “very awkward position of a lawyer subject to conflicting demands” … . Indeed, despite defendant’s right to representation by an attorney single-mindedly devoted to his best interests, counsel pursued a strategy in Jones’s case directly at odds with defending defendant from the drug sale charges that he faced … .. After swearing to a description of one of the sellers that fit defendant, Jones became unavailable to defendant as a trial witness and his strength as a prosecution witness was enhanced … . Counsel’s actions with respect to Jones were inconsistent with representing defendant in the best way possible, so defendant was denied the “right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone” … . People v Peters, 2017 NY Slip Op 08497, First Dept 12-5-17

 

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT, INEFFECTIVE ASSISTANCE,  DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CONFLICT OF INTEREST, CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))

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INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined the amount of interest and attorney’s fees in this foreclosure proceeding must be recalculated. There was a three-year delay (which was not plaintiff’s fault) for which interest should not have accrued. In addition there must be some showing the attorney’s fees reflect the work actually done:

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“In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” … . Here, in view of the lengthy delay by PE-NC’s [plaintiff’s] predecessors in interest in prosecuting this action, PE-NC should recover no interest for the roughly three-year period of time from when the action was commenced in 2005 to when the defendant filed a request for judicial intervention in 2008. While PE-NC did not cause this delay, it should not benefit financially, in the form of accrued interest, from this delay caused by its predecessors in interest. Furthermore, PE-NC should not recover interest on the counsel fees awarded to it. Paragraphs 7 and 21 of the mortgage are inconsistent regarding whether interest could be recovered on counsel fees. Since “ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it” … , this ambiguity must be resolved against PE-NC, whose predecessors in interest presented the mortgage. Moreover, interest awarded under paragraph 7 of the mortgage, on money advanced to protect the lender’s rights in the property, should not have been awarded at the rate of 17%, but at the “Note rate,” which, in this case, was 7.25%.

“An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” … . In this case, a determination must be made on the reasonableness of the counsel fees, following a hearing on that issue, if necessary. Greenpoint Mtge. Corp. v Lamberti, 2017 NY Slip Op 08353, Second Dept 11-29-17

 

FORECLOSURE (INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS (FORECLOSURE, INTEREST, FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/INTEREST (FORECLOSURE, ATTORNEY’S FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))

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