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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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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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