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INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF.

The Second Department determined the judge did not make a sufficient inquiry before allowing the sex offender to represent himself in this SORA proceeding:

Where a defendant makes a timely and unequivocal request to waive the right to counsel and represent herself or himself, “the trial court is obligated to conduct a searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary” … . “A waiver is voluntarily made when the trial court advises the defendant and can be certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant'” … . “A searching inquiry’ does not have to be made in a formulaic manner, . . . although it is better practice to ask the defendant about [her or] his age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . …

… [W]e conclude that the Supreme Court failed to conduct the requisite searching inquiry to ensure that the defendant’s waiver of the right to counsel was unequivocal, voluntary, and intelligent … . The court made only minimal inquiry into the defendant’s age, experience, intelligence, education, and exposure to the legal system, and did not explain the risk inherent in proceeding pro se or the advantages of representation by counsel. The court’s failure to conduct a searching inquiry renders the defendant’s waiver of the right to counsel invalid and requires reversal … . People v Griffin, 2017 NY Slip Op 01577, 2nd Dept 3-1-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/ATTORNEYS (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/

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A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “A prima facie showing of actual innocence is made out when there is “a sufficient showing of possible merit to warrant a fuller exploration”‘ by the court” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

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ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD.

The Third Department sent the matter back to the Worker’s Compensation Board for a review of the Board’s award of $3000 in attorney’s fees. The Third Department determined that the attorney’s fee form was not properly filled out and there was not enough information in the form to allow appellate review:

Our review of the OC-400.1 form submitted in this case reveals that it is very similar to the form submitted by counsel in Matter of Tenecela v Vrapo Constr. (146 AD3d 1217, 2017 NY Slip Op 00367 [2017]) — a form that the Board ultimately deemed to be inadequate in that case (id. at *2). Specifically, although the form here sets forth the dates upon which services were rendered to claimant and the number of hours allocated thereto, the description of those services is largely indecipherable. More to the point, the form tendered by counsel in this matter appears to allocate “25+” hours to an unspecified date or range of dates, thereby “making impossible any assessment of the services rendered” (id.). Finally, the Board premised its award (in part) upon “the financial status of . . . claimant” but, other than noting a reduction in the loss of wage-earning capacity suffered by claimant, the Board’s decision makes no reference to — and the record sheds no light upon — claimant’s financial status. For these reasons, the Board’s award of counsel fees is incapable of intelligent appellate review, and we remit this matter to the Board for reconsideration thereof … . Matter of Shiqerukaj v Gotham Broad, LLC, 2017 NY Slip Op 01426, 3rd Dept 2-23-17

WORKERS’S COMPENSATION LAW (ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)

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UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBEL PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION.

The Third Department affirmed Supreme Court’s awards of damages (upon defendant’s default) for libel per se and abuse of process, as well as punitive damages and attorney’s fees. The Third Department determined the causes of action for intentional infliction of emotional distress and violation of privacy were not viable, and Supreme Court did not have the authority to issue an order of protection. Plaintiff alleged defendant had contacted his employers making false allegations and had initiated many actions against him raising issues already litigated. With respect to intentional infliction of emotional distress, violation of privacy, and the order of protection, the court explained:

A cause of action for intentional infliction of emotional distress should not be entertained “where the conduct complained of falls well within the ambit of other traditional tort liability” … . Here, plaintiff’s complaint incorporated his libel and abuse of process allegations as the basis for this cause of action. Because damages were awarded on those causes of action, the damages awarded on the cause of action for intentional infliction of emotional distress must be vacated.

A cause of action for violation of the right to privacy under Civil Rights Law §§ 50 and [*4]51 is “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … . Absent from the proof furnished by plaintiff was any indication that defendant sought to use his name or photograph “for advertising purposes or for the purposes of trade only” … . Therefore, Supreme Court should have determined that this was not a viable cause of action. …

Supreme Court can properly issue an order of protection in a matrimonial action under Domestic Relations Law §§ 240, 252 … ; here, no matrimonial action was pending. Although such an order is available under Family Ct Act article 8, the pleadings do not contain allegations of conduct that would constitute one of certain enumerated family offenses … . Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 3rd Dept 2-23-17

 

DEFAMATION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/LIBEL PER SE (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ABUSE OF PROCESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/PRIVACY, VIOLATION OF (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ORDER OF PROTECTION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)

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DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED; PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER.

The Third Department, reversing defendant’s conviction, determined the trial judge erred when the full circumstantial evidence jury instruction was not given. There was no direct evidence identifying defendant as the robber of the victim, who was sitting in his car at the time he was robbed. Blood matched to the defendant by DNA evidence was found on the handle of the door of the victim’s car. The Third Department also noted that the prosecutor exceeded the bounds of acceptable commentary during summation when he told the jury the blood on the victim’s car belonged to the robber:

Contrary to the People’s assertion, this was not a case “where both direct and circumstantial evidence [were] employed to demonstrate . . . defendant’s culpability[,] thereby negating the need for the [requested] charge” … . While there indeed is no question — based upon the victim’s testimony and the photographic evidence contained in the record — that the charged crimes did in fact occur, the record makes clear — and the People readily concede — that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match “can provide strong evidence of a person’s presence at and participation in a criminal act” … , a defendant’s mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator … . Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given … . As the People’s proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant’s request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court’s failure to grant the requested charge to be harmless error … . People v James, 2017 NY Slip Op 01409, 3rd Dept 2-23-17

CRIMINAL LAW (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/ATTORNEYS (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/PROSECUTORIAL MISCONDUCT (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/DNA (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW,  DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS.

The First Department, over an extensive two-justice dissent, determined defendant was entitled to a hearing on his motion to set aside the judgment of conviction based upon ineffective assistance of counsel. Defendant alleged that he wanted to testify but didn’t because the Sandoval hearing was never completed and defense counsel never asked that it be completed. Defendant further alleged defense counsel told defendant not to testify and threatened to leave the case if defendant insisted. Defendant also alleged defense counsel was paid to hire an expert on DNA evidence but never did. Defendant submitted expert opinion evidence that cross-examination of the People’s DNA expert could have been more effective had the defense been advised by a defense expert.  The First Department explained that an inquiry into whether a defendant received effective assistance is not an inquiry into whether the outcome of the trial would have been different absent the mistakes by counsel. The only issue is whether defendant received a fair trial:

It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf … . The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone … . Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision. * * *

The dissent argues that no hearing is necessary because “the alleged deficiencies in trial counsel’s performance . . . could not have affected the result of the trial.” That, however, is not the standard for reviewing claims of ineffective assistance of counsel under the State Constitution. New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” … . Although whether a defendant would have been acquitted but for counsel’s errors is relevant, a state claim of ineffective assistance “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” … . People v Mercado, 2017 NY Slip Op 01439, 1st Dept 2-23-17

 

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/ATTORNEYS (CRIMINAL LAW, (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.

The Court of Appeals, in a memorandum decision that does not explain the relevant facts, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. People v Maldonado, 2017 NY Slip Op 01254, CtApp 2-16-17

 

CRIMINAL LAW (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/INEFFECTIVE ASSISTANCE (ATTORNEYS, CRIMINAL LAW, (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)

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DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES.

The Second Department determined defendant should be given the opportunity to move to vacate his guilty plea on the ground he was not informed of the deportation consequences:

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of fundamental fairness, due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty … . A defendant seeking to vacate a plea based on this defect must demonstrate that there is a reasonable probability that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation … .

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. People v Singh, 2017 NY Slip Op 01235, 2nd Dept 2-15-17

 

CRIMINAL LAW (DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)

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FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487; PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION.

The Fourth Department, reversing Supreme Court, determined plaintiff could bring a plenary action against their attorneys pursuant to Judiciary Law 487. The further determined the fact that plaintiff’s had previously asked for sanctions against the attorneys did not collaterally estop them from bringing the Judiciary Law action:

Plaintiffs commenced this Judiciary Law § 487 action against defendant based on her conduct when representing plaintiffs’ adversary in a foreclosure action. We agree with plaintiffs that Supreme Court erred in granting defendant’s motion to dismiss the complaint. Although plaintiffs were aware of the alleged misconduct during the pendency of the prior foreclosure action, they are not precluded from bringing a plenary action alleging a violation of Judiciary Law § 487 provided that they are not collaterally attacking the judgment from the prior action … . Indeed, the language of the statute does not require the claim to be brought in a pending action … . Here, plaintiffs are seeking to recover damages for additional legal fees made necessary by defendant’s alleged misconduct in the foreclosure action, and they are not collaterally attacking the judgment of foreclosure … .

… A motion for sanctions for frivolous conduct (see 22 NYCRR 130-1.1 [c]) is not the same as a cause of action for attorney misconduct … . We therefore conclude that collateral estoppel does not apply, inasmuch as the identical issue was not raised in the foreclosure action … . Kimbrook Rte. 31, L.L.C. v Bass, 2017 NY Slip Op 01083, 4th Dept 2-10-17

 

ATTORNEYS (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/COLLATERAL ESTOPPEL (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/JUDICIARY LAW 487 (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)

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