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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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TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL.

The First Department, over a concurrence, determined defendant was entitled to a new trial for two reasons: (1) the defendant should have been provided with Rosario material which tended to show the police may have confused defendant with another person arrested at the same time; and (2) the trial judge committed a mode of proceedings error by communicating with the jury off the record and outside the presence of defendant and counsel. The concurrence argued the judge did not commit a mode of proceedings error:

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Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party … . Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” … . Thus, Supreme Court’s errors deprived defendant of his right to present a defense … . As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” … , Supreme Court’s errors were not “harmless beyond a reasonable doubt” … .

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Were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground — namely, Supreme Court’s communication with the jury off the record and outside the presence of defendant and his counsel.After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance. The court discharged the jury for the day in contemplation of taking further actions, possibly including the delivery of an Allen charge, in the morning. The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object. People v Farez, 2017 NY Slip Op 04041, 1st Dept 5-18-17

 

CRIMINAL LAW (TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/EVIDENCE (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/ROSARIO MATERIAL (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/JURIES (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)

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DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL.

The Second Department determined the Department of Motor Vehicles’ finding that petitioner (driver) refused to submit to the chemical (blood alcohol) test after a vehicle stop must be annulled. Although the driver was warned that a refusal required the revocation of his license, he was not told that waiting for a return call from his attorney had been deemed a refusal by the arresting officer:

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A motorist under arrest based on an alleged violation of Vehicle and Traffic Law § 1192 may not condition his or her consent to a chemical test on first being permitted to consult with counsel … . Nonetheless, the consequences of refusing to accede to a chemical test may be imposed only if the motorist, after being adequately warned of those consequences, has refused to accede to the test (see Vehicle and Traffic Law § 1194[2][b], [f]). The adequacy of the warning is the same for the consequence imposed by Vehicle and Traffic Law § 1194(2)(b) (suspension and ultimate revocation of the motorist’s driver license) and the consequence imposed by Vehicle and Traffic Law § 1194(2)(f) (admissibility of evidence of refusal at a subsequent criminal trial) … . Here, the undisputed evidence at the hearing held pursuant to Vehicle and Traffic Law § 1194(2)(c) failed to establish that the petitioner was warned that his time for deliberation had expired and his further request to consult with counsel, which the police sought to accommodate, would be deemed a refusal to accede to the chemical test … . We emphasize that our determination is not based on any violation of any purported right to counsel … , but on the adequacy of the warnings that the request to consult with counsel would constitute a refusal to accede to the chemical test … . Matter of Lamb v Egan, 2017 NY Slip Op 03751, 2nd Dept 5-10-17

CRIMINAL LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/DRIVING WHILE INTOXICATED (CHEMICAL TEST, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)

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PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL.

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial:

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… [T]he prosecutor acted as an unsworn witness when he addressed the impeachment of one of the People’s main witnesses, a sister of the complainant (hereinafter the sister). During cross-examination, the sister was impeached by inconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutor argued to the jury that defense counsel had “selected certain portions out of context in the grand jury minutes,” and that the jury “didn’t get the entire grand jury minutes” … . These comments were particularly prejudicial. The sister’s testimony, and thus her credibility, were crucial to the People’s proof against the defendant, which was less than overwhelming. The prosecutor’s comments suggested, without any evidentiary support, that the jury should disregard the sister’s grand jury testimony, in which she failed to name the defendant as a participant in the subject assault, because there was more to the testimony than they knew.

In addition, in reference to the father of the complainant and the sister, who was present during the subject assault but was not called to testify, resulting in a missing witness charge, the prosecutor improperly suggested, and invited the jury to speculate, that the father would have given testimony supportive of his children had he been called to testify … . People v Ramirez, 2017 NY Slip Op 03780, 2nd Dept 5-10-17

 

CRIMINAL LAW (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)

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LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE.

The Second Department determined defendant-attorneys’ motion to dismiss based on documentary evidence was properly denied. Plaintiff alleged the attorneys missed a statute of limitations deadline. The attorneys submitted a letter purporting to terminate the attorney-client relationship with plaintiff prior to the expiration of the statute of limitations. The court found that the letter was not the type of document upon which a motion to dismiss the complaint can be based:

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“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law”… . The evidence submitted in support of such motion must be ” documentary'” or the motion must be denied … . In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … . Prott v Lewin & Baglio, LLP, 2017 NY Slip Op 03786, 2nd Dept 5-10-17

CIVIL PROCEDURE (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/ATTORNEYS (LEGAL MALPRACTICE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/LEGAL MALPRACTICE (LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)

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PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, determined plaintiff state trooper was entitled to attorney’s fees in connection with her successful employment discrimination action against the State under the Equal Access to Justice Act (EAJA):

… [T] he plain language, legislative history and remedial nature of the EAJA together demonstrate that this civil action is eligible for an award of attorneys’ fees. We hold that for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The plain language of the statute, which is supported by the legislative history, compels the conclusion that “any civil action” encompasses cases brought under the Human Rights Law. It is not for this Court to engraft limitations onto the plain language of the statute. Indeed, “[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature” …. . Kimmel v State of New York, 2017 NY Slip Op 03689, CtApp 5-9-17

EMPLOYMENT LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/HUMAN RIGHTS LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/EQUAL ACCESS TO JUSTICE(PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/SEX DISCRIMINATION (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/CIVIL PROCEDURE LAW (ATTORNEY’S FEES, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)

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PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct and ineffective assistance of counsel (failure to object to the prosecutor’s remarks in summation and failure to object to evidence of defendant’s prior bad acts for which no admissibility ruling was sought):

Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury’s sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim’s credibility and injecting the prosecutor’s personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant’s testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant’s credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. “We can only conclude herein that the prosecutor’s inflammatory [comments had] a decided tendency to prejudice the jury against the defendant’ “… . Consequently, we conclude that the cumulative effect of the prosecutorial misconduct, which substantially prejudiced defendant’s rights … , requires reversal.

Furthermore, “[i]n light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation” … . Defense counsel also failed to object when the prosecutor introduced evidence of prior bad acts despite having failed to seek a ruling regarding the admissibility thereof, most notably the testimony of a sheriff’s deputy that, months before this incident, defendant stole the victim’s truck and was arrested for driving it while intoxicated while on the way to attack a person with whom he believed the victim was having an affair. Defense counsel also failed to object when the prosecutor cross-examined defendant regarding that issue. Thus, reversal is also required because defense counsel was ineffective in “fail[ing] to object to prejudicial evidence of prior uncharged crimes and bad acts introduced by the prosecutor” … . People v Case, 2017 NY Slip Op 03638, 4th Dept 5-5-17

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/PRIOR BAD ACTS (FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

The First Department, reversing Supreme Court, determined plaintiff had alleged a valid cause of action for legal malpractice. Plaintiff alleged defendants’ failure to refresh the eyewitness’s recollection of the appearance of the truck which fled the hit-and-run accident scene led to erroneous testimony by the witness and the loss of the case:

In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants’ negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness’s deposition testimony two years after the accident, defendants failed to refresh the eyewitness’s memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants’ negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law  … . Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17

ATTORNEYS (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/LEGAL MALPRACTICE (ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)

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HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

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Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

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DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

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While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

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It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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