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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT.

The Third Department determined claimant’s employer was not entitled to relief from the special disability fund. Claimant had work-related injuries. In order to recover from the fund, the employer was required to demonstrate the claimant: (1) had a preexisting disability (which affected her employability); and (2), the preexisting condition combined with the work-related injuries constituted a permanent disability greater than that caused by the work-related injuries alone:

“In order to be entitled to receive reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (d), the employer must demonstrate that the claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone”… . “The question with regard to the first requirement is not whether the preexisting condition is an obstacle or handicap to the claimant’s particular employment but, rather, whether it would be a hindrance to the claimant’s general employability” … .

We agree with the Board that the employer did not demonstrate that claimant’s preexisting asthma condition hindered, or was likely to hinder, her employability. The record reflects that, although claimant suffered from asthma since at least 1999, she was taking medication, including the use of an inhaler. The record contains no evidence that claimant was under any restrictions because of her asthma, that her asthma affected her ability to perform her job or that it hindered her employability. Notably, “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability” … . Matter of Murphy v Newburgh Enlarged City Sch. Dist., 2017 NY Slip Op 05500, 3rd Dept 7-6-17

 

WORKERS’ COMPENSATION LAW (EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)

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DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing this asbestos-related products liability action should not have been granted. Defendants merely pointed to gaps in plaintiffs’ proof and did not submit prima facie proof demonstrating their products were not the source of asbestos exposure. Therefore summary judgment should have been denied without any reference to the opposing papers:

In February 2015, plaintiff Eileen A. O’Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O’Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants) … . * * *

… [T]he proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O’Connor was employed or that O’Connor was not exposed to any such products … . * * *

… [D]efendants failed to establish, prima facie, that they could not have caused O’Connor’s asbestos-related illness… . Fisher Scientific’s lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, defendants, respectively, “merely pointed to perceived gaps in plaintiff[s’] proof, rather than submitting evidence showing why [plaintiffs’] claims fail” … . O’Connor v Aerco Intl., Inc., 2017 NY Slip Op 05487, 3rd Dept 7-6-17

PRODUCTS LIABILITY (DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SUMMARY JUDGMENT (PRODUCTS LIABILITY, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EVIDENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/NEGLIGENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Egan, determined that the Interstate Compact on the Placement of Children (ICPC) does not allow the placement of a child in another state absent that state’s permission, even when the placement is with a relative (custody, Family Ct Act article 6) and does not involve placement in foster care (neglect, Family Ct Act article 10). Here the grandmother, who lives in North Carolina, sought custody of the child with mother’s consent. The North Carolina authorities, however, determined placement with grandmother would not be appropriate because she was caring for three other children:

Here, DSS argues that the pending Family Ct Act article 10 proceeding against the child’s mother mandated that DSS, as the child’s custodian, comply with the ICPC in the first instance; therefore, the argument continues, absent approval from the appropriate authorities in North Carolina, Family Court was statutorily barred from placing the child with the grandmother in that state. The grandmother, on the other hand, contends the ICPC does not apply at all because custody of the subject child is being sought in the context of a Family Ct Act article 6 proceeding (rather than in conjunction with the related Family Ct Act article 10 neglect proceeding against the mother). Specifically, the grandmother argues that the statute — on its face — is limited to foster care situations or other similar instances in which the receiving state would bear some responsibility for providing aid or services to the subject child. Asserting that she is fully prepared to assume financial responsibility for the child, the grandmother contends that the statutory goals/concerns are not implicated and, therefore, notwithstanding the fact that North Carolina did not recommend the requested placement, the ICPC should not bar placement of the child with her.

The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct Act articles 6 and 10 … and the overarching desire to effectuate an appropriate placement for a child — particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child’s best interests. Here, although there is no question that the grandmother’s efforts to seek custody of the child were well-intentioned, the fact remains that, at the time that the grandmother’s custody petition was filed, DSS had custody of the child in the context of the then-pending Family Ct Act article 10 proceeding … . To that end, “[w]here the custody of a child who is under the supervision of [DSS] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” … — even where, as here, there is a pending Family Ct Act article 6 petition for custody … . Matter of Dawn N. v Schenectady County Dept. of Social Servs., 2017 NY Slip Op 05482, 3rd Dept 7-6-17

 

FAMILY LAW (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/CUSTODY (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/NEGLECT (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)

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COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT.

The Third Department, reversing Supreme Court, determined the Commissioner of Corrections and Community Supervision and the Central Office Review Committee (hereinafter CORC) were not necessary parties to this review of a disciplinary proceeding and other grievances:

“CPLR 1001 (a) states that an individual or entity is a necessary party to litigation ‘if complete relief is to be accorded between the persons who are parties to the action’ or if the entity [or individual] ‘might be inequitably affected by a judgment in the action [or proceeding]'” … . Here, respondent maintains that the Commissioner and CORC are necessary parties to this action because complete relief cannot be accorded in their absence. Although respondent correctly notes that the Commissioner is the individual who renders the final determination in tier III disciplinary proceedings … and CORC is the entity having the final decision on whether to grant or deny an inmate grievance … , the failure to name either the Commissioner or CORC as a party has never before inequitably affected them or prevented this Court from according complete relief in similar proceedings… . Moreover, in light of the fact that respondent, the Commissioner and CORC are integrally related inasmuch as they each fall under the umbrella of the Department of Corrections and Community Supervision, we find that the Commissioner and CORC are at no risk of prejudice and would not be “inequitably affected by a judgment” if they were not joined in this proceeding … . Under these circumstances, we conclude that the Commissioner and CORC are not necessary parties, and the failure to name them in proceedings such as this can be ignored. Matter of Green v Uhler, 2017 NY Slip Op 05491, 3rd Dept 7-6-17

DISCIPLINARY HEARINGS (INMATES) (COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)/CIVIL PROCEDURE (DISCIPLINARY HEARINGS (INMATES) COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)/NECESSARY PARTIES (CIVIL PROCEDURE, DISCIPLINARY HEARINGS (INMATES) COMMISSIONER AND CENTRAL OFFICE REVIEW COMMITTEE ARE NOT NECESSARY PARTIES FOR A REVIEW OF A DISCIPLINARY DETERMINATION 3RD DEPT)

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HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Peters, determined County Court should not have dismissed two hate crimes (attempted murder and assault) upon reading the grand jury minutes. Defendant, who is white, shot the victim, who is black, after a tirade of racial slurs:

Viewed most favorably to the People, the evidence before the grand jury provided a prima facie case of the hate crimes of attempted murder in the first degree and assault in the first degree. The foregoing testimony established that defendant repeatedly hurled several denigrating, racial slurs at the victim alone, whom he did not know, from the outset of the confrontation until the moment before he shot the victim at point blank range. Racial animosity and the use of epithets relating to a protected attribute, such as race, are probative of a defendant’s motive and intent for purposes of proving a hate crime … . The grand jury could have rationally inferred from this evidence — as well as the testimony that defendant had, just a half hour earlier, openly stated to another bar patron that he “hate[d] black people” — that the acts constituting the crimes at issue were motivated “in whole or in substantial part” by the victim’s race (Penal Law § 485.05 [1] [b…). Because the grand jury could have rationally drawn the inference of guilt from this proof, the fact “‘[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant'”… . Accordingly, we modify the judgment and reinstate counts 1 and 2 of the indictment. People v Spratley, 2017 NY Slip Op 05478, 3rd Dept 7-6-17

CRIMINAL LAW (EVIDENCE, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/EVIDENCE (GRAND JURY, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/GRAND JURY (EVIDENCE, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)/HATE CRIMES (GRAND JURY, HATE CRIMES SHOULD NOT HAVE BEEN DISMISSED UPON A READING OF THE GRAND JURY MINUTES 3RD DEPT)

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MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT.

The Third Department determined defendant’s motion to vacate the judgment of conviction should not have been denied without a hearing. Defendant denied stealing the victim’s wallet. The trial evidence indicated there were security cameras on businesses which may have captured the events, Defendant alleged his attorney did not make any effort to investigate whether videos existed and did not interview a man who was present during the incident:

… [W]e agree with defendant that he alleged certain “non-record facts” that “are material and, if established, . . . would entitle him to relief” so as to warrant a hearing … . Defendant, in particular, averred that defense counsel rendered ineffective assistance by failing to engage in needed discovery related to his claim that he did not take the victim’s wallet. The trial evidence established that the incident occurred in an area surrounded by businesses with security cameras installed and that defense counsel was aware of this fact. Defense counsel, according to defendant, did not investigate whether those security cameras captured the incident on video prior to trial and did not obtain the footage to determine whether it undercut the victim’s claim that defendant had robbed him. Defendant further noted that he was with another man when the incident occurred and alleged that defense counsel failed to interview that individual to learn whether his testimony would be helpful to the defense. If defense counsel failed without reason to investigate known proof that had the potential to corroborate defendant’s account of events, it “may have amounted to less than meaningful representation”  … . Inasmuch as those questions “cannot be determined on the motion papers, . . . we remit for a hearing where proof can be presented on” them … . People v Cruz, 2017 NY Slip Op 05476, 3rd Dept 7-6-17

CRIMINAL LAW (MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO INVESTIGATE, MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE THE CONVICTION, ALLEGING DEFENSE COUNSEL’S FAILURE TO INVESTIGATE, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING 3RD DEPT)

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT.

The Third Department, reversing the convictions, determined defendant’s request to represent himself should have been granted:

At an apppearance on May 19, 2014, defendant’s counsel informed County Court (Drago, J.) that defendant wanted to represent himself at trial. The court duly inquired into defendant’s educational background, which included a GED earned in 2003, and engaged in an extensive colloquy with defendant emphasizing the importance of having counsel represent him. During this exchange, when asked to explain his decision, defendant gave the extraordinary response, “I don’t really have much explanation for it, just like I’ve been making bad choices, why not continue.” Defendant then illogically acknowledged this was a bad choice on his part. County Court understandably encouraged defendant to reconsider his decision, and directed that a transcript of the proceeding be provided to the trial judge who would make the decision on the application.

When the trial began on May 27, 2014, County Court (Catena, J.), having reviewed the transcript, directly addressed the representation issue with defendant. Defendant elaborated that he had decided to represent himself because he had been unrepresented for the “first seven months of incarceration” and felt he had “a better chance of representing [himself].” He continued, “So I feel like nobody’s going to fight for my life like I’m going to fight for it.” After confirming that assigned counsel was prepared to go forward, County Court denied defendant’s request to proceed pro se, reasoning that it would not be appropriate or a “wise choice” for defendant to do so. As understandable as that reasoning is, the issue is not whether defendant was making a prudent decision, but whether he had the capacity to knowingly waive his right to counsel … .While defendant’s initial extraordinary explanation raised a cause for concern, we conclude that his confirmation at trial demonstrates that he knowingly and unequivocally waived his right to counsel. Since defendant was improperly denied the right to proceed pro se, the judgment must be reversed and the matter remitted for a new trial … . People v Curry, 2017 NY Slip Op 05475, 3rd Dept 7-6-17

 

CRIMINAL LAW (DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)/ATTORNEYS (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)/RIGHT TO COUNSEL (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 3RD DEPT)

DELAY DUE TO MOTION PRACTICE BY CO-DEFENDANTS NOT CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS FOR A SPEEDY TRIAL VIOLATION SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department determined the defendant’s motion to dismiss based upon a speedy trial violation should not have been granted. The relevant period of postreadiness delay was due to motion practice by co-defendants and was therefore not chargeable to the People for any of the defendants:

The five codefendants who were named with defendant in the joint indictment were arrested and arraigned at various times. During the 27-day period that Supreme Court charged to the People as postreadiness delay, several of these codefendants were engaged in motion practice, including motions that were due but had not yet been filed, were awaiting the People’s response, or were awaiting the court’s decision. In a prosecution involving a single defendant, delay resulting from motion practice is not chargeable to the People (see CPL 30.30 [4] [a]…). Likewise, periods of delay that result from motion practice by any codefendant in a joint prosecution are excludable as to all of them … . Defendant did not meet his burden to show that the delay resulting from his codefendants’ motion practice was unreasonably lengthy or that the exclusion provided by CPL 30.30 (4) (d) should not be applied here for any other reason … .

As the language of CPL 30.30 (4) (d) implies, a defendant’s remedy for delays caused by codefendants in a joint prosecution is to move for severance. Here, although defendant was represented by counsel throughout the pertinent period, he neither moved for severance at any time nor showed that good cause for severance existed … . Thus, the 27-day period charged by Supreme Court to the People as postreadiness delay should not have been added to the 163-day period of prereadiness delay, with the result that the People declared readiness within six months and complied with their statutory obligation. People v Chrysler, 2017 NY Slip Op 05477, 3rd Dept 7-6-17

 

CRIMINAL LAW (DELAY DUE TO MOTION PRACTICE BY CO-DEFENDANTS NOT CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS FOR A SPEEDY TRIAL VIOLATION SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SPEEDY TRIAL (DELAY DUE TO MOTION PRACTICE BY CO-DEFENDANTS NOT CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS FOR A SPEEDY TRIAL VIOLATION SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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