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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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POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge, extensive, dissenting opinion, determined that the prosecutor’s use of a PowerPoint presentation of annotated trial exhibits during summation was proper because the annotations fairly described the evidence:

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At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel’s argument, or in the court’s admonitions. We reject defendant’s position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations. People v Anderson, 2017 NY Slip Op 02589, CtApp 4-4-17

CRIMINAL LAW (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/ATTORNEYS (CRIMINAL LAW, POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/PROSECUTORIAL MISCONDUCT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/POWERPOINT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)

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INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the inaccurate labeling of trial exhibits (photographs) in a PowerPoint presentation by the prosecutor during summation did not deprive the defendant of a fair trial. One photo, for example, was annotated with text indicating the photo depicted the defendant, but the witness who testified about the photo could not definitively say it was the defendant. The trial judge recognized the problem, stopped the PowerPoint presentation, and instructed the jury to disregard the slides:

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There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it … . If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence … . Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable … .

Here, defendant argues that he was deprived of a fair trial by the annotation of images of the trial exhibits to imply that the victim’s brother, in his testimony, had positively identified either his truck or defendant from the surveillance video because this misrepresented the witness’s testimony. Significantly, the trial court was very attuned to the annotated slides and, in the exercise of its discretion, ultimately stopped the slideshow and instructed the jury to disregard the slides … . To the extent any slides may have misrepresented the trial evidence, the trial court instructed the jury on more than one occasion that the attorneys’ arguments were not evidence and that the jury was the sole judge of the facts. Defense counsel also rejected the court’s offer of any less drastic relief after the denial of the mistrial motion. Thus, under these circumstances, defendant was not deprived of a fair trial. People v Williams, 2017 NY Slip Op 02588, CtApp 4-4-17

 

CRIMINAL LAW (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/ATTORNEYS (CRIMINAL LAW, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/PROSECUTORIAL MISCONDUCT  (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/POWERPOINT (CRIMINAL LAW, SUMMATION, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO INTRODUCE TAPED THIRD-PARTY CONFESSION, THE RELIABILITY PRONG OF THE STATEMENT AGAINST PENAL INTEREST CRITERIA WAS VERY WEAK.

The Fourth Department determined the defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds was properly denied. The basis of the ineffective assistance claim was his attorney’s failure to put in evidence a third party’s taped confession to the crime (to which defendant had pled guilty). The Fourth Department explained the tape recording did not meet the criteria for a statement against penal interest:

“The declaration against penal interest exception to the hearsay rule recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true’ ” … . “The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … . “The fourth factor is the most important’ aspect of the exception” … , and “[t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . Where, as here, the declaration exculpates the defendant, “[s]upportive evidence is sufficient if it establishes a reasonable possibility that the [declaration] might be true” … . …

In support of her conclusion that the confession was inadmissible, trial counsel testified that all she had was a voice on a tape recording and, based on her discussions with the prior attorney, “there was some question as to whether [the third party] was even voluntarily in [the prior attorney’s] office” when he made the confession. Defendant testified that the third party was a friend of one of his sisters, and that the third party and defendant’s sister smoked crack cocaine together. … [T]he prior attorney made arrangements for the third party to be appointed counsel, but the third party disappeared shortly thereafter and, despite diligent efforts, including maintaining the investigator’s search, trial counsel was unable to locate him even up through defendant’s trial. People v Conway, 2017 NY Slip Op 02530, 4th Dept 3-31-17

 

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