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PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING.

The Fourth Department did not reverse defendant’s conviction because of prosecutorial misconduct, but took the opportunity to admonish the prosecutor responsible for it, noting that several past reversals were based on that same prosecutor’s misconduct. The court determined the fact that the trial judge sustained objections to the misconduct and properly instructed the jury, together with the overwhelming evidence of guilt, allowed the conviction to stand:

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The People correctly concede that the prosecutor improperly appealed to the sympathy of the jury … . The People also correctly concede that the prosecutor improperly implied that a potential adolescent witness did not testify because he felt “guilt” about defendant’s actions; County Court, however, properly sustained defense counsel’s objection to the prosecutor’s statement and gave a curative instruction, which the jury is presumed to have followed … . Thus, with respect to that instance of misconduct, we conclude that any prejudice was alleviated … . The People also correctly concede that the prosecutor denigrated defense counsel by stating that he intentionally attempted to confuse an adolescent prosecution witness. We further conclude that, in an attempt to discredit the testimony of an adolescent defense witness, the prosecutor misstated the evidence with respect to whether the witness had spoken with defendant regarding the allegations against him. Although the prosecutor properly responded to defense counsel’s remarks during summation attacking the credibility of the victim … , she also improperly vouched for the credibility of the victim’s testimony … . Furthermore, the prosecutor improperly acted as an unsworn expert by describing defendant’s behavior towards the victim as “classic grooming behavior,” and as an unsworn witness with respect to reasons why the victim delayed in reporting what had occurred … . People v Flowers, 2017 NY Slip Op 04990, 4th Dept 6-16-17

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)

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FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED.

The Second Department determined Family Court did not make sure appellant under stood the consequences of proceeding without counsel in this order of protection matter:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel… . A party, however, may waive that right, provided that he or she does so knowingly, voluntarily, and intelligently … . To ensure that a party’s waiver of the right to counsel is valid, the Family Court must conduct a “searching inquiry”… . There is no rigid formula, but the record must demonstrate that the party has chosen to proceed without counsel despite being aware of and understanding the dangers and disadvantages of doing so … .

Here, when the appellant expressed his desire to proceed without counsel, the Family Court tried to explain the dangers and disadvantages of doing so. The record shows, however, that the appellant was confused by the colloquy and did not comprehend the court’s explanation. The court nevertheless permitted him to proceed without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Gugliara v Gugliara, 2017 NY Slip Op 04840, 2nd Dept 6-14-17

 

FAMILY LAW (RIGHT TO COUNSEL, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, ORDER OF PROTECTION,  FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)

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INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR).

The First Department, over a dissent, determined the plaintiff’s insurer (RLI), which opted not to defend this construction accident case, was required to indemnify the insurers who paid the $2.5 million settlement, both for the damages and the excess attorney’s fees. The plaintiff opted to hire a law firm other that the firm used by the workers’ compensation carrier (SLI). The workers’ compensation carrier paid $150/hour toward the other attorneys’ fees. The firm hired by plaintiff (Greenberg Traurig) charged $795/hr. The dissent argued the fees should have been capped at $150/hr. The other issue addressed by the court was the late notification of plaintiff’s insurer. The late notice was excused because of a good faith belief recovery was limited to workers’ compensation (and therefore subject to a policy exclusion):

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RLI’s argument that the voluntary payment doctrine bars recovery of amounts paid to Greenberg Traurig in defense of the underlying claim is without merit. Having chosen to deny coverage and not participate in the defense, RLI “excluded itself from any aspect of the [p]laintiff’s defense in the Vasquez estate’s action,” including the negotiation of attorneys’ fees and the selection of attorneys, as so found by the motion court, and cannot now be heard to complain. Plaintiff is entitled to recover attorneys’ fees incurred in defense of the underlying action as “damages which are the natural and probable consequence of the breach” by RLI of the contract of insurance … .

We reject defendant’s argument that the $150 per hour contributed by SIF acts as a ceiling on fees … . Any agreement between SIF and plaintiff as to fees has no bearing on RLI’s responsibility to provide a defense, save as it pertains to any eventual allocation of defense costs as between the two carriers … . The record does not contain a copy of the SIF policy, so we are unable to make any determination as to whether the carriers share the costs of defense in equal parts as primary carriers, or whether defendant RLI is solely responsible. It may be noted that under RLI’s policy, competing primary insurers are to contribute on an equal basis. Cohen Bros. Realty Corp. v RLI Ins. Co., 20 17 NY Slip Op 04776, 1st Dept 6-13-17

 

INSURANCE LAW (ATTORNEY’S FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/ATTORNEYS (INSURANCE LAW, FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/EMPLOYMENT LAW (INSURANCE LAW, WORKERS’ COMPENSATION LAW, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

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Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

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BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.

The First Department, reversing the denial of defendant’s motion to suppress his statements, over a two justice dissent, determined the detective’s mention of a drug offense for which defendant was represented by counsel during questioning on a homicide required suppression of the interrogation:

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Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received … . People v Silvagnoli, 2017 NY Slip Op 04392, 1st Dept 6-6-17

 

CRIMINAL LAW (SUPPRESSION OF STATEMENT, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/EVIDENCE (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/ATTORNEYS (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)

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ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY.

The First Department, reversing (modifying) Supreme Court, determined plaintiff could not assert attorney-client privilege to protect information on a company-owned laptop, but could assert the attorney work product privilege subject to court review of the log:

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Application of the factors set forth in In re Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr, SD NY 2005]) indicates that plaintiff lacked any reasonable expectation of privacy in his personal use of the laptop computer supplied to him by defendant Zara USA, Inc. (Zara), his employer, and thus lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege … . Among other factors, Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge… , restricted use of company-owned electronic resources, including computers, to “business purposes” and proscribed offensive uses. The handbook specified that “[a]ny data collected, downloaded and/or created” on its electronic resources was “the exclusive property of Zara,” emphasized that “[e]mployees should expect that all information created, transmitted, downloaded, received or stored in Zara’s electronic communications resources may be accessed by Zara at any time, without prior notice,” and added that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”

Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff’s laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any “actual disclosure to a third party, [plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections” … . Miller v Zara USA, Inc., 2017 NY Slip Op 04407, 1st Dept 6-6-17

 

ATTORNEYS (PRIVILEGE, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/PRIVILEGE (ATTORNEYS, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY-CLIENT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY WORK PRODUCT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)

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DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED.

The Second Department determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel was properly granted. The hearing demonstrated defendant could have pled to an offense that would not result in mandatory deportation:

… [D]efendant established that he was denied the effective assistance of counsel because his counsel failed to attempt to negotiate a plea to a crime that would not have constituted an aggravated felony under federal law, and therefore would not have subjected him to mandatory deportation. The record establishes that the People were willing to accept a plea to a crime pursuant to Penal Law § 220.16(12) that would not have subjected the defendant to mandatory deportation and that defense counsel did not make such a request because he was not aware that a plea pursuant to Penal Law § 220.16(12) would not have subjected the defendant to mandatory deportation … . Moreover, defense counsel testified at a hearing on the motion to vacate the judgment of conviction that, had he known that a plea pursuant to Penal Law § 220.16(1) would have subjected the defendant to mandatory deportation, he would have attempted to negotiate a plea under Penal Law § 220.16(12) and would have advised the defendant not to take the plea that he ultimately took. This evidence supports the court’s finding that the defendant was not afforded meaningful representation as guaranteed by the New York Constitution …

Further, in light of the People’s admission that they would have been amenable to such a plea had defense counsel raised the issue, the defendant established that he was prejudiced by defense counsel’s conduct in failing to attempt to negotiate a plea that would not have subjected the defendant to mandatory deportation … . In addition, since the People refused at the time of the hearing on the motion to consent to vacate the defendant’s conviction so as to have the case restored to the calendar to allow the defendant to plead pursuant to Penal Law § 220.16(12), this further establishes that defense counsel’s failure to attempt to negotiate a plea pursuant to Penal Law § 220.16(12) at a time when the People were amenable to such a plea prejudiced the defendant and affected the “fairness of the process as a whole” … . People v Guzman, 2017 NY Slip Op 04291, 2nd Dept 5-31-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/VACATE CONVICTION, MOTION TO DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)

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PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant law firm was entitled to sanctions for the frivolous conduct of plaintiff’s counsel.  Plaintiff’s counsel had repeatedly, including on appeal, made the false allegation that defendant law firm had withdrawn two causes of action which would have been successful. The two causes of action had, in fact, been timely brought by defendant law firm, but were subsequently withdrawn by successor counsel:

… [D]espite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.

There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.

“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above”… .

We also consider that sanctions serve to deter future frivolous conduct “not only by the particular parties, but also by the Bar at large” … . The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.

Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.

The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal … . Boye v Rubin & Bailin, LLP, 2017 NY Slip Op 04239, 1st Dept 5-30-17

 

ATTORNEYS (ETHICS, SANCTIONS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/SANCTIONS (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/ETHICAL VIOLATIONS (ATTORNEYS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/FRIVOLOUS CONDUCT (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/APPEALS (FRIVOLOUS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE.

The First Department determined defendant was entitled to a hearing on her motion to set aside her conviction based upon ineffective assistance of counsel. Defendant alleged she was told by her attorney (erroneously) that a guilty plea would not result in deportation:

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Defendant said in an affidavit that she informed her plea counsel that she was not a U.S. citizen but was a legal permanent resident and was concerned about maintaining her immigration status and not being deported. Counsel advised her that, if she pleaded guilty to attempted second-degree conspiracy, she would receive five years of probation, with no jail time, and assured her that, by taking the plea and receiving probation, she would not have to fear any deportation proceedings. Defendant, age 26 at the time, had been in jail since her arrest, and wanted to be released as soon as possible, so that she could rejoin her two young children.

Accordingly, defendant pleaded guilty, was sentenced as indicated, and successfully completed her probation.

However, in 2012, defendant was referred to U.S. Immigration and Customs Enforcement (ICE), and on June 5, 2012, ICE issued her a Notice to Appear. Defendant said that she learned that conspiracy is considered an “aggravated felony” under the immigration law, which leaves her exposed to deportation proceedings, except under limited and difficult-to-meet exceptions under the Convention Against Torture. …

Defendant said that, if she had known that her guilty plea would subject her to a risk of deportation, she “never would have entered a guilty plea,” but instead “would have contested the matter, tried to negotiate a better plea or taken the case to trial.” She said that she believed that she “would have had a good defense as [she]was not involved in any drug activity, did not know that [her] stepfather was involved in drugs and never saw any drugs … .”

Defendant submitted an affidavit by her plea counsel, who said that she no longer possessed a copy of defendant’s file, and the plea transcript was not available. Nonetheless, counsel said she recalled speaking to defendant a few times, with her secretary acting as interpreter. Counsel recalled that defendant was a legal resident and not a U.S. citizen, but “[did] not recall any advice [she] may have given to [defendant] concerning the plea she eventually entered and the ramifications of that plea upon her status in the United States.”

Counsel explained that her difficulty remembering was due not only to the passage of 15 years, but also to the fact that, at the time of the plea, she was going through “personal difficulties,” including “alcoholism and addiction.” In May 2000, counsel was indicted in Supreme Court, Ulster County, for first-degree promoting prison contraband, seventh-degree criminal possession of a controlled substance, and second-degree harassment.

Under these circumstances, a hearing should be held on whether counsel’s performance rose to the level of ineffective assistance of counsel… . People v Sanchez, 2017 NY Slip Op 04200, 1st Dept 5-26-17

 

CRIMINAL LAW (SET ASIDE THE CONVICTION, MOTION TO, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)

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