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THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE, AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION.

The Fourth Department reversed defendant’s conviction for two reasons: (1) the trial judge acceded to defendant’s request that the jury not be instructed on a lesser included offense, and (2) the trial judge, in light of defendant’s behavior during the trial, should have ordered a competency examination:

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We agree with defendant, however, that he was denied his right to counsel when County Court permitted him, rather than defense counsel, to decide whether to request a jury charge on a lesser included offense. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . “[D]efense counsel has ultimate decision-making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense” … . Here, defense counsel requested a charge on the lesser included offense of criminal trespass. After defendant stated that he did not want such a charge, the court noted that defendant’s consent was not required. Nevertheless, defense counsel stated that he was not requesting the charge based on defendant’s decision not to follow his advice. Although defense counsel unequivocally and repeatedly stated that the charge was in defendant’s best interest, and indicated that defendant was declining the charge against defense counsel’s advice, the court abided defendant’s choice and thus “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . …

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Although a defendant is presumed to be competent … , whenever a court has a ” reasonable ground for believing that a defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects’ ” … . Here, in light of the nature and frequency of defendant’s outbursts, and the People’s expressed concern about defendant’s competency prior to trial, we conclude that the court abused its discretion in failing to insure that defendant was competent to stand trial … . People v Minckler, 2017 NY Slip Op 03311, 4th Dept 4-28-17

 

CRIMINAL LAW (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/ATTORNEYS (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/LESSER INCLUDED OFFENSE (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSE, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/RIGHT TO COUNSEL (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/COMPETENCY EXAMINATION (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)

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ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED.

In a dispute between real estate brokers over plaintiff’s entitlement to a percentage of a commission, the Second Department determined defendants’ counterclaims for abuse of process, prima facie tort, tortious interference with prospective business relations, and attorney’s fees were properly dismissed. The (unsuccessful) claim for attorney’s fees was based upon language in a real estate policy and procedure manual the language of which was deemed too vague to supplant the general rule that parties are responsible for their own attorney’s fees. With regard to the abuse of process and attorney’s fees claims, the court explained:

“The three essential elements of the tort of abuse of process are (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective'” … . “[T]he gist of the tort is the improper use of process after it is issued’ by an unlawful interference with one’s person or property'”… . Here, the gravamen of the first counterclaim was that the plaintiff initiated this lawsuit with the intent to harm the defendants, knowing that the brokerage community would find out about the lawsuit, which would damage the defendants’ ability to do business in that community. However, “the institution of a civil action by summons and complaint is not legally considered process capable of being abused” … . Moreover, there was no allegation that the plaintiff improperly used process after it was issued. Furthermore, “a malicious motive alone does not give rise to a cause of action to recover damages for abuse of process” … . * * *

In the fourth counterclaim the defendants sought to recover attorneys’ fees incurred in defending this action pursuant to a provision in their “Policy & Procedure Manual,” which states, inter alia, that “[i]f a dispute arises due to a commission and a legal action is commenced as a result thereof, the costs of the legal action will be deducted from the fee collected,” and “[i]f [a] suit is a result of an agent’s action, he/she will be responsible for payment of damages incurred as a result.” Since “a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” … . Here, the provision relied upon by the defendants is vague, and a promise by the plaintiff to indemnify the defendants for attorneys’ fees incurred in litigation between them cannot be clearly implied from the language and purpose of the entire manual. Goldman v Citicore I, LLC, 2017 NY Slip Op 03156, 2nd Dept 4-26-17

 

REAL ESTATE (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/INTENTIONAL TORTS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/ABUSE OF PROCESS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/COMMISSIONS (REAL ESTATE, ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)

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PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION.

The Second Department determined father had a right to meaningful assistance of counsel in proceedings stemming from a failure to pay court-ordered child support. The court further found father’s counsel was ineffective because no attempt was made to submit proof father could not work due to his mental illness:

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With respect to this proceeding, Family Court Act § 262(a)(vi) extends the right to counsel to “any person in any proceeding . . . in which an order or other determination is being sought to hold such person . . . in willful violation of a previous order of the court,” because such persons potentially may be incarcerated. The possibility of incarceration exists where a party fails to comply with a support order, since Family Court Act § 454(3) authorizes the court, upon a finding that a respondent “has willfully failed to obey any lawful order of support,” to “commit the respondent to jail for a term not to exceed six months.”

The statutory right to counsel afforded under Family Court Act § 262(a)(vi) would be “meaningless unless the assistance of counsel is effective” … . Accordingly, in support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, we hold that the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard.  Matter of Nassau County Dept. of Social Servs. v King, 2017 NY Slip Op 02992, 2nd Dept 4-19-17

 

FAMILY LAW (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/ATTORNEYS (FAMILY LAW, PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/CHILD SUPPORT (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED.

The Second Department sent the matter back because defendant was not informed of the deportation consequences of his guilty plea. The court explained the relevant law and procedure:

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In People v Peque (22 NY3d 168), the Court of Appeals held that, as part of its independent obligation to ascertain whether a defendant is pleading guilty voluntarily, a trial court must alert a noncitizen defendant that he or she may be deported as a consequence of the plea of guilty (see id. at 193). Although no particular litany is required, “[t]he trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea” (id. at 197).

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Here, we agree with the defendant that the County Court did not provide him with such a statement on the record. However, contrary to the defendant’s contention, he is not entitled to reversal of the judgment of conviction at this juncture. In order to withdraw or obtain vacatur of a plea based upon a Peque error, “a defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation” (id. at 198). Accordingly, we remit the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the County Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and upon such motion, the defendant shall have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 176 ,,, ). In its report to this Court, the County Court shall state whether the defendant moved to vacate his plea of guilty, and if so, shall include its findings as to whether the defendant has made the requisite showing to entitle him to vacatur of the plea … . People v Lopez-Alvarado, 2017 NY Slip Op 03018, 2nd Dept 4-19-17

 

CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/GUILTY PLEA (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/DEPORTATION (CRIMINAL LAW, GUILTY PLEA, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)

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ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, THE ATTORNEY MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY.

The Second Department determined plaintiff was entitled to summary judgment on liability in this action against plaintiff’s attorney alleging violation of ethics rules in setting a contingency fee in an equitable distribution matter. However the attorney may be entitled to payment under a quantum meruit theory:

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The plaintiff demonstrated, prima facie, through the submission of the parties’ retainer agreement, that the defendant charged her a contingency fee in violation of rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR 1200.0). Because the defendant’s fee was to be “determined by reference to the amount of . . . equitable distribution” in the form of the money judgment and subsequent enforcement stipulation, the retainer agreement violated rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR § 1200.0). Contrary to the defendant’s argument, the enforcement of an equitable distribution award reduced to a money judgment is not exempt from rule 1.5(d)(5)(i) ,,, . The plaintiff also demonstrated prima facie that the defendant violated the rules set forth in 22 NYCRR 1400.3. In that respect, the retainer agreement did not specify how the defendant’s fee would be calculated if the plaintiff discharged the defendant “during the course of the representation” and did not specify how frequently itemized bills would be provided (22 NYCRR 1400.3). Additionally, the plaintiff did not receive itemized bills from the defendant … . In opposition, the defendant failed to raise a triable issue of fact. Medina v Kraslow, 2017 NY Slip Op 02979, 2nd Dept 4-19-17

ATTORNEYS (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/FAMILY LAW (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/CONTINGENCY FEES (FAMILY LAW, ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)

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DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE.

The First Department, in a full-fledged opinion by Justice Renwick, with a concurring opinion, determined the trial judge properly granted plaintiff’s motion for a new trial in this personal injury case because of the unacceptable behavior of defense counsel. Plaintiff alleged she was struck by a bus while crossing the street, injuring her back and knee. The jury found the defendant 70% at fault but found that the injuries were not permanent and awarded nothing for future pain and suffering. The First Department concluded the verdict was probably a compromise and the defense attorney’s conduct deprived plaintiff of a fair trial:

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In ordering a new trial, the trial court concluded that defense counsel’s conduct was “so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial.” Also, such conduct “occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt.”

The court then cited the multiple instances of defense counsel’s misconduct: “frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)”; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a “real surgeon”; his pattern of interrupting and speaking over the court despite the court’s directions to stop; and his interruption of the trial by demanding that plaintiff’s counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a “sneering, denigrating tone” while cross-examining Dr. Davy and plaintiff’s other witnesses. The court also noted as not reflected in the record the “tone of voice” directed at plaintiff’s counsel, witnesses, and the court, or the “volume of his voice”; the court noted that it had admonished counsel “not to scream” on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop. Smith v Rudolph, 2017 NY Slip Op 02957, 1st Dept 4-18-17

 

ATTORNEYS (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/CIVIL PROCEDURE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/NEGLIGENCE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)

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SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS.

The Second Department determined a respondent in a Mental Hygiene Law article 10 proceeding (re: civil commitment of sex offenders) has a right to effective assistance of counsel (not usually the case in a civil proceeding). Respondent’s writ of error coram nobis, alleging ineffective assistance, however, was denied on the merits:

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Generally, in the context of civil litigation, an attorney’s errors or omissions are binding on the client and a claim of ineffective assistance of counsel will not be entertained in the absence of extraordinary circumstances … . However, a respondent in a Mental Hygiene Law article 10 proceeding has a statutory right to counsel …  and, as in proceedings pursuant to the Sex Offender Registration Act (Correction Law art 6-C) and certain Family Court proceedings, the consequences of an unfavorable determination in these particular civil proceedings are uniquely severe … . Indeed, a respondent in a Mental Hygiene Law article 10 proceeding “arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite, and can last the remainder of a respondent’s life” … . Further, a respondent’s statutory right to counsel in a Mental Hygiene Law article 10 proceeding would be eviscerated if counsel were ineffective… .  Thus, a claim of ineffective assistance of counsel may be raised in a Mental Hygiene Law article 10 proceeding … . Matter of State of New York v Wayne J., 2017 NY Slip Op 02798, 2nd Dept 4-12-17

MENTAL HYGIENE LAW (SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/ATTORNEYS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/SEX OFFENDERS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)

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DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD.

The Third Department determined a hearing should have been held on defendant’s motion to set aside her conviction after trial on ineffective assistance grounds. Defendant argued that had she known she could not be deported based upon a guilty plea she would not have gone to trial and thereby been subject to a longer sentence:

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Defendant maintains that, had counsel properly determined her immigration status during the course of her representation, she would likely have entered a guilty plea. She would have thus been exposed to less prison time than she received after trial, much like that of her codefendant. We note that miscommunications in matters such as this have provided a basis for finding that a defendant was denied the effective assistance of counsel … . People v Monterio, 2017 NY Slip Op 02693, 3rd Dept 4-6-17

CRIMINAL LAW (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/INEFFECTIVE ASSISTANCE (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/SET ASIDE CONVICTION, MOTION TO  (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)

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RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY.

The Third Department, reversing defendant’s conviction, determined the facts presented the rare scenario that required the court’s inquiry into whether defendant waived his right to testify. After proof had closed, the defendant made it clear that he wanted to testify and that he and his attorney did not agree on the question:

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Defendant’s request to testify, coupled with his statements that he and defense counsel had disagreed on the issue, gave rise to one of those rare circumstances in which County Court was required to engage in a direct colloquy with defendant so as to discern whether he had been advised that the decision to testify ultimately belonged to him and whether, at the time that the defense rested, defendant’s failure to testify had been a knowing, voluntary and intelligent waiver of that right … . However, County Court failed to engage in the required inquiry so as to ensure that defendant’s constitutional right to testify was protected. While County Court asked whether there was an application to reopen the proof and indicated that it would consider such a request, it directed that question only to defense counsel, even in the face of defendant’s repeated statements that he and defense counsel had differing opinions on the matter. By directing its question solely to defense counsel, County Court demonstrated an apparent misapprehension of longstanding precedent holding that a represented defendant has final decision-making authority over the decision to testify … . People v Morgan, 2017 NY Slip Op 02692, 3rd Dept 4-6-17

CRIMINAL LAW (RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)/TESTIFY, RIGHT TO (CRIMINAL LAW, RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)

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QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice cause of action timely. The malpractice allegation stemmed from the alleged failure of the attorneys to recognize that the sale of plaintiff’s business required the creation of a pension fund ($500,000). There was evidence a meeting was held to discuss the pension fund problem at a time which would rendered the malpractice action timely:

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A claim to recover damages for legal malpractice accrues when the malpractice is committed … . “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” … . For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … .

Here, the defendant satisfied its initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in March 2015 … . In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. The plaintiffs submitted Andrew Stein’s affidavit, in which he averred that he met with members of the defendant on July 26, 2012, to determine how to rectify the pension liability issue. Andrew indicated that he was not satisfied with their recommendations concerning how to rectify the issue and directed them to formulate another idea. Andrew’s affidavit was sufficient to raise a question of fact as to whether the defendant engaged in a course of continuous representation intended to rectify or mitigate the initial act of alleged malpractice … . Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP. 2017 NY Slip Op 02688, 2nd Dept 4-5-17

 

ATTORNEYS (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/ATTORNEYS (LEGAL MALPRACTICE, (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/LEGAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CIVIL PROCEDURE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)

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