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JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined defendant’s motion to vacate his conviction should have been granted. After the trial the prosecutor informed the court that a juror in defendant’s trial had applied for a job at the district attorney’s office two days before jury selection but did not disclose the application during voir dire. Ultimately the juror was hired by the district attorney’s office. Although the juror had prior experience on the prosecution side, her position at the time of trial involved white collar criminal defense. Defense counsel stated at the hearing that the juror was chosen because of her criminal defense work and, had defense counsel been aware the juror had applied for work in the district attorney’s office, the juror would have been struck:

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Here, due to the juror’s concealment of material information regarding her job application, which also demonstrated a predisposition in favor of the prosecution, defendant was deprived of an impartial jury comprised of 12 jurors whom he had selected and approved through voir dire. In fact, defendant was tried by only 11 jurors whom he truly selected and approved; this violated his constitutional right to a jury of 12 of his own choice in a criminal case … . He was also deprived of exercising the various safeguards put into place by our legislature. As defense counsel testified, had the juror timely disclosed this information he would have moved to strike her for cause, and if unsuccessful would have exercised a peremptory challenge against her … While we recognize that there is no rule requiring automatic reversal in these situations … , since the verdict was not returned by a fair and impartial jury and we find the juror would have been subject to removal for cause, we agree with defendant that he was denied a fair trial on the ground that he was not tried by a jury of his own choice. We thus remand for a new trial. Critically, the juror remaining on the jury was prejudicial to defendant because he was ultimately convicted by the jury. People v Southall, 2017 NY Slip Op 08344, First Dept 11-28-17

 

CRIMINAL LAW (JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT))/JURIES (CRIMINAL LAW, JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT))

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DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the wrong advice about whether defendant could appeal after pleading guilty warranted reversal, despite the failure to preserved the error. Defendant was told he could appeal the denial of his speedy trial motion:

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A defendant forfeits his right to appellate review of a CPL 30.30 motion upon a guilty plea … . However, here, the record is clear that the court misadvised defendant that he could pursue his 30.30 claim on appeal of a guilty plea … . Neither the defense counsel nor the prosecutor corrected the court’s misadvice. Moreover, defendant accepted a lengthier sentence, and declined to replead to a different offense with a shorter prison sentence, based on this misstatement that his 30.30 claim could be raised on appeal. Under the totality of these circumstances, defendant’s plea is vacated and the matter remanded … . As defendant had no practical ability to object to the error because he was sentenced on the date the misstatement occurred, … , he was not required to preserve his argument. People v Sanchez, 2017 NY Slip Op 08193, First Dept 11-21-17

 

CRIMINAL LAW (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/GUILTY PLEA, VACATION OF (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))

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NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two dissenting opinions, determined that defendant was not entitled to coram nobis relief based upon ineffective assistance for failure to perfect an appeal:

 

In People v Syville (15 NY3d 391 [2010]), we held that, in rare circumstances, a defendant may seek coram nobis relief despite failing to move for an extension of time to file a notice of appeal within the one-year grace period provided by CPL 460.30. Specifically, we concluded that coram nobis may be available for a defendant who demonstrated that he or she timely requested that trial counsel file a notice of appeal, the attorney failed to comply, and the omission could not reasonably have been discovered within the one-year time limit … . Defendant now asks us to expand Syville to situations in which retained trial counsel filed a timely notice of appeal but allegedly failed to advise the defendant of his or her right to poor person relief, or to take any action when served with a motion to dismiss the appeal years after the notice of appeal was filed. Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here. * * *

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Given this … Court’s holdings … that a defendant is not constitutionally entitled to the assistance of counsel in seeking poor person relief as long as he or she is given written notice that is similar to the one defendant received here — defendant has a heavy burden to demonstrate entitlement to a writ of error coram nobis premised on ineffective assistance of counsel for failing to assist in procuring poor person relief. … He failed to meet that burden here, both in terms of his specific claim that counsel did not advise him of his right to seek poor person relief in connection with his appeal and the more general claim, advanced by both Judge Rivera and Judge Wilson in dissent, that counsel did not consult with him regarding an appeal.

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With respect to the other prong of defendant’s coram nobis motion (based on failure to respond to the dismissal motion four years after the notice of appeal was filed) defendant and Judge Rivera, in her dissent, essentially seek a rule that trial counsel has a constitutional responsibility in connection with an appeal for an indefinite period of time extending for years after the notice of appeal is filed. Neither defendant nor that dissent cite any legal support for the imposition of such a rule. Moreover, the cases … do not support imposing either … an open-ended obligation on behalf of trial counsel or a rule that counsel is ineffective for failing to assist a defendant in obtaining poor person relief. People v Arjune, 2017 NY Slip Op 08159, CtApp 11-20-17

 

CRIMINAL LAW (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/ATTORNEYS (CRIMINAL LAW, NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/APPEALS (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/CORAM NOBIS  (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))

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WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant could not have raised the ineffective assistance argument on direct appeal and therefore county court should not have denied his motion to vacate his conviction without a hearing. There was a question whether defense counsel could have successfully moved to dismiss three felonies based on the violation of protections against double jeopardy in Criminal Procedure Law (CPL) 40.20. Defendant was indicted on three felonies and three misdemeanors. But defendant had already pled guilty to the three misdemeanors in town court. When that was discovered the county court judge sent the three misdemeanors back to town court and defendant was convicted of the three felonies in county court:

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… [E]ven if separate prosecutions were not permitted under subdivision 40.20 (2) (b), defendant must also establish that separate prosecutions were not permitted under CPL 40.20 (2) (a) in order to establish that a motion to dismiss the felonies under CPL 40.20, if made, would have been successful.

Unlike subdivision (2) (b), the determination whether separate prosecutions were permitted under subdivision (2) (a) could not have been made on the direct appeal because the “lower court paperwork” was not included in the record, and a review of the charging documents for the prior and current prosecutions is necessary to determine if acts establishing the misdemeanor offenses were “in the main clearly distinguishable from those establishing the [felony offenses]” … .

Inasmuch as the record on the direct appeal lacked the lower court paperwork, the record on direct appeal was insufficient to determine whether a motion to dismiss the felony counts under CPL 40.20, if made, would have been successful. People v Pace, 2017 NY Slip Op 08137, Fourth Dept 11-17-17

 

CRIMINAL LAW (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/INEFFECTIVE ASSISTANCE  (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/DOUBLE JEOPARDY  (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/CRIMINAL PROCEDURE LAW 40.20 (DOUBLE JEOPARDY, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))

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JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT).

The Fourth Department ordered a new trial on the assault and unlawful imprisonment charges and reached a prosecutorial misconduct issue in the interest of justice (error not preserved). The prosecutorial misconduct, referring to evidence (a bloody t-shirt) which had been destroyed, was not deemed reversible. The Fourth Department found that a jury instruction on assault allowed the jury to consider a theory about how the victim was injured which was not charged in the indictment. Such an error affects the fundamental right to be tried only on what has been charged and need not be preserved. The Fourth Department also found that the evidence supported both the charged and a lesser included unlawful imprisonment offenses. The judge’s refusal to charge the jury on the lesser included was reversible error:

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… [The] conviction of assault in the second degree must be reversed because Supreme Court’s instruction created the possibility that the jury convicted him upon a theory different from the one charged in the indictment. … As a preliminary matter, we reject the People’s contention that defendant was required to preserve his contention for our review. It is well settled that ” defendant has a “fundamental and nonwaivable” right to be tried only on the crimes charged’ ” … . With respect to the merits of defendant’s contention, “[w]here the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory” … . We may not apply harmless error analysis to such an error because it would be impossible to determine whether the jury based its guilty verdict on the uncharged theory … . People v Barber, 2017 NY Slip Op 07807, Fourth Dept 11-9-17

 

CRIMINAL LAW (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/JURY INSTRUCTIONS CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/LESSER INCLUDED OFFENSES  (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))

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REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department affirmed most of Supreme Court’s rulings on the disclosure of documents in a billing dispute, including a report from a consultant, finding that the documents were not protected by privileges for attorney-client communications, attorney work-product, or material prepared for litigation. The criteria for all were described:

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… [T]he report “does not include any legal advice, legal analysis or discussion of legal issues” nor does it disclose confidences of defendant, and ,,, it is not a communication “of a legal character” … . * * *Thus, the report was not protected by the attorney-client privilege.

…[T]he report was not protected from disclosure as attorney work product, as this “privilege should be narrowly applied to materials prepared by an attorney, acting as an attorney, which contain his [or her] analysis and trial strategy” … .

Materials such as reports prepared by a third party, a nonlawyer consultant, during an investigation do not ordinarily qualify under this exception … . * * *

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With regard to the claim that the report was protected from disclosure as material prepared for litigation, defendant’s “burden was to demonstrate that [the report] was obtained solely for litigation purposes” … , which “cannot be satisfied with wholly conclusory allegations”… . “[M]ixed or multipurpose reports are not free from disclosure” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07909, Third Dept 11-9-17

 

ATTORNEYS (PRIVILEGES, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))PRIVILEGE (ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/CIVIL PROCEDURE (DISCLOSURE, PRIVILEGE,  REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY-CLIENT PRIVILEGE (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY WORK-PRODUCT (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/LITIGATION, MATERIAL PREPARED FOR (PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT)/DISCLOSURE (PRIVILEGE, ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))

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SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

The Fourth Department, reversing (modifying Supreme Court) determined plaintiff was not entitled to disclosure of the pre-disclaimer opinion of outside counsel for the insurer, and was not entitled to the insurer’s manual without an in camera review of the manual for relevance. Supreme Court properly ordered disclosure of the pre-disclaimer claim notes which included statements made by the insured (father of the injured infant):

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… [T]he court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” … . Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable … , documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared … .

[T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s reserve information and denying that part of defendant’s cross motion with respect thereto inasmuch as that information is not “material and necessary” to the action (CPLR 3101 [a]…).

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… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … . …[T]he court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action … . Celani v Allstate Indem. Co., 2017 NY Slip Op 07799, Fourth Dept 11-9-17

 

INSURANCE LAW (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CIVIL PROCEDURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/ATTORNEYS (INSURANCE LAW, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/PRIVILEGE (ATTORNEY-CLIENT, INSURANCE LAW, DISCLOSURE, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/DISCLOSURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CPLR 3101 (a) (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))

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FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT).

The Second Department determined defense counsel was not ineffective for failing to request a jury instruction on the intoxication defense in this murder and manslaughter case (two victims). Defense counsel had requested jury charges on the justification defense and lesser included offenses. It is possible defense counsel made a strategic decision against requesting the intoxication defense instruction:

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Assuming, without deciding, that the evidence at trial was sufficient to warrant an intoxication charge … , defense counsel was not ineffective for failing to request that charge in this case … . Defense counsel prudently pursued a justification defense, which would have been a total defense to the top count of murder in the second degree. Moreover, defense counsel successfully requested the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree, and the latter count was submitted over the People’s objection. Defense counsel could have strategically determined that requesting an intoxication charge would have undermined, or distracted from, the justification defense in this particular case. Although reasonable legal minds may differ on the better strategy with respect to a charge of intoxication, we cannot second-guess defense counsel’s decision with the benefit of hindsight. Accordingly, the defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel’s failure to request an intoxication charge … . People v Pagan, 2017 NY Slip Op 07753, Second Dept 11-8-17

 

CRIMINAL LAW (FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, AILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))

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ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

The Second Department noted that an action alleging attorneys adduced false testimony in a prior court proceeding must be brought as a motion to vacate the judgment in the prior case, not as a new action:

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Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment … . Under an exception to that rule, a separate action may be commenced where the alleged perjury or fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … which was “greater in scope than the issues determined in the prior proceeding” … .

Here, the moving defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging fraud, aiding and abetting fraud, violation of Judiciary Law § 487, and prima facie tort insofar as asserted against them by demonstrating that the plaintiffs are merely attempting to collaterally attack an order issued in the underlying action. In opposition, the plaintiffs only raised conclusory and unsubstantiated allegations that the moving defendants’ fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … . DeMartino v Lomonaco, 2017 NY Slip Op 07706, Second Dept 11-8-17

 

CIVIL PROCEDURE (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FRAUD (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/ATTORNEYS (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FALSE TESTIMONY (ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))EVIDENCE (FALSE TESTIMONY, FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))

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ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Taylor, over a dissent, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Even though some of the ineffective assistance claims could be determined from the original record (and therefore should have been raised on appeal), because some of the claims could not be determined from the record, the court could consider all the ineffective assistance issues:

​

… [W]e do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant’s argument that trial counsel was ineffective for failing to impeach the cabdriver “is dependent upon [a] statement[] to the police that [is] outside the record” and, therefore, was properly raised in the context of the instant CPL 440.10 motion … . Defendant also faults trial counsel for failing to request that the crime of assault in the third degree … be submitted to the jury as a lesser included offense of assault in the second degree … . While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that “the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People’s case” … . Because defendant’s complaint about counsel in this regard is predicated on counsel’s strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion … .

The two other allegations of ineffectiveness raised on the motion — that counsel failed to object to County Court’s Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 — are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 AD3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. … [W]e agree. People v Taylor, 2017 NY Slip Op 07649, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/VACATE CONVICTION, MOTION TO (INEFFECTIVE ASSISTANCE, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))

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