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MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT.

The Third Department determined defendant’s motion to vacate the judgment of conviction should not have been denied without a hearing. Defendant denied stealing the victim’s wallet. The trial evidence indicated there were security cameras on businesses which may have captured the events, Defendant alleged his attorney did not make any effort to investigate whether videos existed and did not interview a man who was present during the incident:

… [W]e agree with defendant that he alleged certain “non-record facts” that “are material and, if established, . . . would entitle him to relief” so as to warrant a hearing … . Defendant, in particular, averred that defense counsel rendered ineffective assistance by failing to engage in needed discovery related to his claim that he did not take the victim’s wallet. The trial evidence established that the incident occurred in an area surrounded by businesses with security cameras installed and that defense counsel was aware of this fact. Defense counsel, according to defendant, did not investigate whether those security cameras captured the incident on video prior to trial and did not obtain the footage to determine whether it undercut the victim’s claim that defendant had robbed him. Defendant further noted that he was with another man when the incident occurred and alleged that defense counsel failed to interview that individual to learn whether his testimony would be helpful to the defense. If defense counsel failed without reason to investigate known proof that had the potential to corroborate defendant’s account of events, it “may have amounted to less than meaningful representation”  … . Inasmuch as those questions “cannot be determined on the motion papers, . . . we remit for a hearing where proof can be presented on” them … . People v Cruz, 2017 NY Slip Op 05476, 3rd Dept 7-6-17

CRIMINAL LAW (MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO INVESTIGATE, MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT.

The Third Department, reversing the convictions, determined defendant’s request to represent himself should have been granted:

At an apppearance on May 19, 2014, defendant’s counsel informed County Court (Drago, J.) that defendant wanted to represent himself at trial. The court duly inquired into defendant’s educational background, which included a GED earned in 2003, and engaged in an extensive colloquy with defendant emphasizing the importance of having counsel represent him. During this exchange, when asked to explain his decision, defendant gave the extraordinary response, “I don’t really have much explanation for it, just like I’ve been making bad choices, why not continue.” Defendant then illogically acknowledged this was a bad choice on his part. County Court understandably encouraged defendant to reconsider his decision, and directed that a transcript of the proceeding be provided to the trial judge who would make the decision on the application.

When the trial began on May 27, 2014, County Court (Catena, J.), having reviewed the transcript, directly addressed the representation issue with defendant. Defendant elaborated that he had decided to represent himself because he had been unrepresented for the “first seven months of incarceration” and felt he had “a better chance of representing [himself].” He continued, “So I feel like nobody’s going to fight for my life like I’m going to fight for it.” After confirming that assigned counsel was prepared to go forward, County Court denied defendant’s request to proceed pro se, reasoning that it would not be appropriate or a “wise choice” for defendant to do so. As understandable as that reasoning is, the issue is not whether defendant was making a prudent decision, but whether he had the capacity to knowingly waive his right to counsel … .While defendant’s initial extraordinary explanation raised a cause for concern, we conclude that his confirmation at trial demonstrates that he knowingly and unequivocally waived his right to counsel. Since defendant was improperly denied the right to proceed pro se, the judgment must be reversed and the matter remitted for a new trial … . People v Curry, 2017 NY Slip Op 05475, 3rd Dept 7-6-17

 

CRIMINAL LAW (DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)/ATTORNEYS (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)/RIGHT TO COUNSEL (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)

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PROSECUTOR’S CHARACTERIZATION OF DNA EVIDENCE WAS NOT IMPROPER, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE CHARACTERIZATION WAS NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, reversing the appellate division, determined the characterization of the DNA evidence by the prosecutor was not improper, and defense counsel’s failure to object to the characterization did not constitute ineffective assistance:

The People’s forensic expert gave statistical testimony regarding the likelihood (“1.661 quadrillion times more likely”) that defendant and his deceased wife, rather than two randomly selected individuals, were contributors to a DNA mixture profile drawn from a blood stain on defendant’s sweatshirt. The prosecutor, during his summation, summarized this testimony by telling the jury that the victim’s DNA was “on” defendant’s sweatshirt. Defense counsel’s failure to object to this characterization did not amount to ineffective assistance of counsel. The expert testimony regarding the “likelihood ratio” here contrasts with the testimony at issue in People v Wright (25 NY3d 769 [2015]), which “only indicated that defendant could not be excluded from the pool of male DNA contributors, and . . . provided no statistical comparison to measure the significance of those results” … . Nor did counsel’s other alleged errors of representation, either individually or collectively, deprive defendant of meaningful representation. People v Ramsaran, 2017 NY Slip Op 05268, CtApp 6-29-17

 

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FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

The Second Department, reversing Family Court, determined father had been deprived of his right to counsel in mother’s relocation-petition proceeding. Father appeared for the hearing and told the court he had retained an attorney but the attorney could not attend that day. The court went ahead with the hearing:

After the court granted assigned counsel’s request to be relieved, it adjourned the hearing until June 24, 2016, so that the father could retain counsel. On June 24, 2016, the father told the court that he had retained an attorney but that the attorney could not be in court that day. The court, however, proceeded with the hearing after stating that it had no choice but to proceed.

We agree with the father’s contention that he was deprived of his statutory right to counsel … . Under the circumstances, instead of ordering the hearing to proceed, the Family Court should have granted an adjournment … . Accordingly, reversal is required, without regard to the merits of the father’s position, and we remit the matter … for a new hearing and new determination thereafter … . Matter of Charbonneau v Charbonneau, 2017 NY Slip Op 05221, 2nd Dept 6-28-17

 

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TWO OF THE COUNTS TO WHICH DEFENDANT PLED GUILTY WERE NOT SUPPORTED BY THE FACTS ALLEGED, THE ISSUE WAS NOT RAISED ON APPEAL, THEREFORE THE MOTION TO VACATE THE CONVICTION WAS PROCEDURALLY BARRED, STRONG DISSENT.

The Second Department, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds was properly denied because the issue could have been appealed. Defendant pled guilty to three counts charging robbery second. However the underlying factual allegations for two of the counts only supported robbery third. Defendant was sentenced to consecutive five year terms of imprisonment, one for each robbery second count. The issue was not raised on appeal and a writ of error coram nobis was denied:

FROM THE DISSENT:

I understand that we are constrained by CPL 440.10(2)(2), which provides that a court must deny a motion to vacate a judgment of conviction where the ground or issue raised upon the motion could have been raised on a direct appeal from the judgment of conviction and the defendant unjustifiably failed to do so … . Here, the defendant, although represented by appellate counsel, failed to raise, on his direct appeal, the meritorious issues he now raises on his CPL 440.10 motion … . The defendant filed an application for a writ of error coram nobis, claiming that his appellate counsel was ineffective for failing to raise these issues. However, that application was summarily denied … . Under these unique circumstances, where the defendant has no other apparent avenue of relief in the New York State court system, it would be fundamentally unfair and unjust to apply the procedural bar set forth in CPL 440.10 to his claims.

Accordingly, while I understand the reasoning the majority applies in reaching its determination, I cannot join it, and must respectfully dissent. People v McKenzie, 2017 NY Slip Op 05243, 2nd Dept 6-28-17

 

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ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER REPRESENTING PLAINTIFF, THE PROPER PROCEDURE FOR WITHDRAWAL OF AN ATTORNEY OF RECORD HAD NOT BEEN FOLLOWED, THEREFORE THE STIPULATION OF DISCONTINUANCE SIGNED BY PLAINTIFF PRO SE WAS NOT VALID.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore the stipulation of discontinuance was not valid:

“Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause…,  an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute”… . “Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated” … .

Here, at the time that the plaintiff executed the stipulation of discontinuance, he and Mulhern had not signed and filed a consent to change attorney form or sought a court order permitting Mulhern to withdraw as the plaintiff’s counsel. Thus, as to the defendants, Mulhern still was the plaintiff’s attorney … , and the plaintiff was not permitted to act pro se without consent of the court … . Accordingly, the plaintiff’s motion to vacate the stipulation of discontinuance should have been granted. Garafalo v Mayoka, 2017 NY Slip Op 05201, 2nd Dept 6-28-17

 

IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ORDERED DEFENSE COUNSEL TO PROVIDE STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION.

The Third Department determined Supreme Court properly required defense counsel, who represented several defendants, to submit statements demonstrating the clients’ consent to joint representation (to address potential conflicts of interest):

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With respect to defense counsel’s potential conflict of interest, we first note that defendants failed to preserve any objection that plaintiff lacked standing to raise the issue or failed to file her cross motion in a timely manner. Nor did Supreme Court err in ordering defense counsel to obtain the written statements. “[A] lawyer shall not represent a client if a reasonable lawyer would conclude that . . . the representation will involve the lawyer in representing differing interests” … . Notwithstanding such a conflict, a lawyer may still represent a client if “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing” … . All Supreme Court’s order effectively does is assure compliance with this rule … . Considering the differing roles of each defendant, we conclude that Supreme Court prudently directed defense counsel to provide the client statements. Bynum v Camp Bisco, LLC, 2017 NY Slip Op 05143, 3rd Dept 6-22-17

ATTORNEYS (CONFLICT OF INTEREST, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)/CONFLICT OF INTEREST (ATTORNEYS, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)

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ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY.

The Second Department noted that attorney’s fees greater that the amount awarded by the court cannot be sought unless the court awarded fees in an amount less than was demanded. The court further noted that a letter of engagement in a matrimonial matter is mandatory and quantum meruit relief is not available:

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An attorney is not precluded from seeking fees charged pursuant to a retainer agreement that are greater than the amount granted to the client by the court in the action where the circumstances warrant, such as where the fees awarded by the court are less than the amount demanded … . Here, the plaintiff obtained awards of the amounts demanded in both the Family Court and Supreme Court matters and, accordingly, was not entitled to additional fees.

With respect to the appellate work provided, there was no written retainer agreement, which is required by 22 NYCRR 1400.3, governing such work. While the existing retainer agreements were for “post judgment” matter, which could be understood as matter arising subsequent to the entry of the judgment of divorce, those agreements explicitly did not encompass appellate work. Therefore, the plaintiff was not entitled to payment for fees incurred for appellate work … .

Further, while in a nonmatrimonial matter the unintentional failure to provide a letter of engagement does not preclude an attorney from recovering the fair and reasonable value of his or her services pursuant to the doctrine of quantum meruit …,this case involves postjudgment relief in a matrimonial matter, for which a written retainer agreement is required … . In any event, the plaintiff did not assert a cause of action sounding in quantum meruit in the complaint, and there is no proof in this record of the fair and reasonable value of the plaintiff’s services on the appeal. No transcript of the trial has been provided, thus precluding review of that factual issue … . Hyman & Gilbert v Withers, 2017 NY Slip Op 05072, 2nd Dept 6-21-17

 

FAMILY LAW (ATTORNEY’S FEES, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/ATTORNEYS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/RETAINER AGREEMENTS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/LETTERS OF ENGAGEMENT (FAMILY LAW,  ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/QUANTUM MERUIT (FAMILY LAW, ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)

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FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL.

The Second Department determined Family Court’s failure to appoint new counsel for father after relieving father’s prior counsel in this modification of custody proceeding deprived father of his right to counsel:

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Under the circumstances presented, where the Family Court granted assigned counsel’s motion to be relieved, refused to assign the father a new attorney, and then compelled the father to choose between representing himself or having his petition dismissed, the Family Court violated the father’s right to be represented by counsel … . The father neither forfeited his right to counsel nor knowingly, voluntarily, and intelligently waived his right to counsel … . Moreover, the mere fact that the court granted the motion of the father’s first assigned counsel to be relieved did not serve to extinguish the father’s right to have another attorney assigned to represent him … . Accordingly, upon granting the motion of the father’s assigned counsel to be relieved of his assignment, the Family Court should have assigned the father new counsel … . Matter of Rosado v Badillo, 2017 NY Slip Op 05096, 2nd Dept 6-21-17

FAMILY LAW (ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/CUSTODY (FAMILY LAW , ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, CUSTODY, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)

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PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL.

The Second Department determined Family Court did not ensure that the party subject to an order of protection proceeding knowingly and intelligently waived his right to counsel:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily … . In order to determine whether a party is validly waiving the right to counsel, the court must conduct a “searching inquiry” to ensure that the waiver is knowing, intelligent, and voluntary … . ” While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel'” … , and it is the “better practice” for the court to inquire about the litigant’s ” age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … .

Here, the record was inadequate to demonstrate that the appellant validly waived his right to counsel … . Accordingly, the order must be reversed, and the matter remitted to the Family Court, Kings County, for a new hearing at which the appellant shall either appear with counsel or knowingly, voluntarily, and intelligently waive his right to counsel, and a new determination on the petition thereafter. Matter of Dixon v Marshall, 2017 NY Slip Op 05085, 2nd Dept 6-21-17

 

FAMILY LAW (PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)

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