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Only Documents Relevant to the Order/Judgment Appealed from Should Be in the Record on Appeal—Motion to Settle the Record Denied

The Third Department affirmed Supreme Court’s denial of plaintiff’s motion to settle the record (on appeal) by adding documents (which were deemed not relevant to the appeal). The court described the required contents of the record:

Consistent with the provisions of CPLR 5526, “the record on appeal from a final judgment shall consist of a notice of appeal, the judgment roll, the transcript or a statement in lieu of a transcript if there was a trial or hearing, any exhibits in the court of original instance, any other reviewable order and any opinion in the case” … . The judgment roll, in turn, shall contain, among other things, “the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment” (CPLR 5017 [b]…). As a result, “[d]ocuments or information that were not before [the trial court] cannot be considered by this Court on appeal” .. . Here, Supreme Court expressly found that the five documents at issue were neither considered in conjunction with nor relevant to the issues that gave rise to its … order and judgment… . Xiaoling Shirley He v Xiaokang Xu, 2015 NY Slip Op 06385, 3rd Dept 7-30-15

 

Failure to Directly Address a Juror’s Stated Bias Required Reversal—“Bright Line” Rule Explained

The Third Department, over a dissent, determined that, once the prospective juror (No. 383) expressed a bias based upon the age difference between the adult defendant and child complainant, the failure to gain the assurance from the juror that her prior state of mind will not influence her verdict and she will render an impartial verdict based solely on the evidence constituted reversible error. The fact that the juror assured the judge she would not vote to convict if she had a reasonable doubt and that she would follow the law as instructed was not enough to address the expressed age-related bias.  A juror who has expressed a bias must unambiguously assure the court she will put her bias aside:

Once a prospective juror has identified his or her own biased perspective, he or she “must expressly state that his [or her] prior state of mind concerning either the case or either of the parties will not influence his [or her] verdict, and he [or she] must also state that he [or she] will render an impartial verdict based solely on the evidence” … . “[N]othing less than a personal, unequivocal assurance of impartiality can cure a juror’s prior indication that [he or] she is predisposed against a particular defendant or particular type of case” …, and, accordingly, the “bright-line standard . . . followed throughout the state” is “that a prospective juror who expresses partiality towards [one party] and cannot unequivocally promise to set aside this bias should be removed for cause” … . * * *

Considering the entirety of the questions posed to juror No. 383 and her responses, juror No. 383 unambiguously acknowledged a form of bias — based on the respective ages of the victim and defendant — that she identified as preventing her from being a fair and impartial juror. After juror No. 383 identified her own bias, she was never asked a question that referenced whether she could set aside any biases she held, generally, or whether she could set aside her specific bias regarding the respective ages of defendant and the victim. Further, in her responses to questions posed to her, juror No. 383 never specifically made reference to the age issue after she identified it as preventing her from being fair and impartial, and she never agreed, more generally, that she could set aside any bias that she held and decide the case in a fair and impartial manner based on the evidence presented. Therefore, juror No. 383 did not “unambiguously state that, despite preexisting opinions that might indicate bias, [she would] decide the case impartially and based on the evidence,” because she never made any statement regarding her preexisting opinion, let alone an unambiguous statement that she could set such opinion aside (People v Arnold, 96 NY2d at 363)[FN3]. Accordingly, County Court committed reversible error in denying defendant’s for-cause challenge to a juror who never contradicted or retracted her statement that her bias related to the respective ages of defendant and the victim prevented her from being a fair and impartial juror … . People v Warrington, 2015 NY Slip Op 06380, 3rd Dept 7-30-15

 

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Petitioner-Teacher Never Consented to an “Out of Area” Assignment—Therefore She Was Entitled to Seniority in Her Teaching Area, Despite Her Assignment to Another Area

The Third Department determined Supreme Court correctly annulled the commissioner’s determination terminating petitioner’s employment on the ground that her position was properly eliminated because she had the least seniority. Although petitioner was in the English tenure area, she was assigned to teach computer classes, which she had taught for 11 years. The commissioner determined she had acquired no seniority because she had not taught in her tenure area.  However, the relevant regulations require that a teacher consent to an “out of area” assignment. Because petitioner never consented to an “out of area” assignment, she was entitled to seniority in her English tenure area, despite the fact she was assigned to teach computer classes.  The Third Department noted that the Commissioner’s ruling constituted an artificial or forced construction of the applicable regulations:

Petitioner acknowledges that, although the Board awarded her tenure in the English 7-12 tenure area, she never spent 40% or more of her time teaching English classes. She contends, however, that her seniority is preserved by another provision of the Rules, which states that “[n]o professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his [or her] time in a tenure area other than that in which he [or she] has acquired tenure or is in probationary status, without his [or her] prior written consent” (8 NYCRR 30-1.9 [c]).

Our review of the evidence reveals that petitioner was a professional educator (see 8 NYCRR 30-1.1 [e]) who was assigned exclusively to teach computer classes, which the Board admits was an assignment outside of her probationary and acquired English 7-12 tenure area. The record is devoid of evidence that petitioner was aware that she was given an out-of-area assignment or that she consented to it in writing. * * * Nowhere in the language of 8 NYCRR 30-1.9 (c) is there a requirement that professional educators must first spend some of their time teaching within their probationary or acquired tenure areas before earning the right to consent to an out-of-area assignment. Inasmuch as the Commissioner’s interpretation reads this nonexistent requirement into the provision, we view it as “an artificial or forced construction” (McKinney’s Cons Laws of NY, Book 1, Statutes § 94).

The Commissioner’s interpretation also runs contrary to the underlying purposes of the Rules governing teacher tenure and seniority credit. As the Court of Appeals has noted, 8 NYCRR former 30.9 (b) (now 8 NYCRR 30-1.9 [c]) “protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments” … . The “twofold protective purpose” of 8 NYCRR 30-1.9 (c) — that is, to protect teachers from unknowing, involuntary out-of-area assignments and allow for the accrual of seniority credit in their original tenure area if they should accept such an assignment — is not served if the provision is construed in such a way as “to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area”… . Because the Commissioner’s interpretation of 8 NYCRR 30-1.9 (c) has precisely this effect on petitioner, we find that Supreme Court properly annulled the Commissioner’s confirmation of petitioner’s termination. Matter of Cronk v King, 2015 NY Slip Op 06396, 3rd Dept 7-30-15

 

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Cotenant’s Exclusive Possession and Payment of Taxes and Maintenance Costs, Standing Alone, Are Not Enough to Establish Adverse Possession As Against a Cotenant/Criteria for Ouster of Cotenant Not Met

The Third Department determined that the motion to dismiss for failure to state a cause of action was properly granted. A cotenant who had resided at the property, maintained the property, and paid the taxes for over two decades, brought an action seeking exclusive ownership based upon ouster of defendant cotenant and/or adverse possession. Neither the complaint nor plaintiff’s submissions established the statutory criteria for ouster or adverse possession (Real Property Actions and Proceedings Law [RPAPL] 541) . There was no unequivocal expression by the possessory cotenant that the property was being adversely possessed, and the inclusion of the defendant cotenant’s name on a property insurance policy belied adverse possession. The court noted that exclusive possession and payment of maintenance expenses by a cotenant, standing alone, do not establish adverse possession:

The law that would have provided … plaintiff a valid legal claim with regard to the underlying property dispute is RPAPL 541, which provides that, “[w]here the relation of tenants in common has existed, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, . . . or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant.” It is well settled that, “absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession” … .

We reject plaintiff’s contention that she and Lindine ever ousted defendant or defendant’s parents from the property. An ouster will not be deemed to have occurred unless the possessory cotenant, either through words or actions, unequivocally expresses to the nonpossessory cotenant that the property is being adversely possessed … . * * *

Plaintiff alternatively contends that, even if no ouster has been established, she and Lindine adversely possessed the property, given their exclusive use of it for more than two decades (see RPAPL 541). In support of this argument, plaintiff emphasizes that she and Lindine paid all taxes and expenses for the property, and made all necessary repairs to its structural improvements. Defendant never visited the property during the years that plaintiff and Lindine lived there permanently and defendant’s parents, it is claimed, only did so twice. Even accepting these allegations as true, “exclusive possession and the payment of maintenance expenses by a [possessory] cotenant are[, standing alone,] insufficient to establish a claim of right for purposes of adverse possession as against a cotenant” … . Lindine v Iasenza, 2015 NY Slip Op 06275, 3rd Dept 7-23-15

 

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Improper Evidence of Uncharged Offenses, a Police Officer’s Vouching for the Reliability and Credibility of the People’s Central Witness, and the Court’s Failure to Give Limiting Instructions to the Jurors after Sustaining Objections to Improper Testimony Deprived Defendant of a Fair Trial

The Third Department reversed defendant’s conviction based upon several errors including the improper presentation of evidence of uncharged crimes attributed to the defendant and a police officer’s vouching for the reliability and credibility of the confidential informant (CI), upon whose testimony the People’s case depended. The jury heard evidence of defendant’s participation in a drug offense identical to that for which he was on trial. Even though objection to the testimony was sustained and the testimony struck, no limiting instructions were given to the jury. Evidence of defendant’s sitting at a table on which were large amounts of heroin and crack cocaine was also improperly presented. Objection to that testimony was overruled. With respect to the police officer’s vouching for the credibility and reliability of the CI, the defense objection to that testimony was sustained, but no curative instructions were given to the jury:

At trial … the CI testified that defendant was not only present during [a] controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant’s prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI’s testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial … . Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table “with large amounts of heroin and crack cocaine in front of him.” Although no reference to “heroin” was included in the People’s Molineux proffer, or otherwise previously disclosed, the court overruled defendant’s objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI’s narrative … . Significantly, the court did not attempt to cure the prejudice arising from the CI’s improper testimony by issuing an instruction either at the time of defendant’s objection or during the jury charge … . * * *

Further prejudice resulted from the People’s redirect examination of [officer] Gillis, who stated that the CI was “very reliable and very trustworthy.” After County Court overruled defendant’s objection, and characterized the testimony as “opinion,” Gillis elaborated that the CI had “never given [him a] reason to not believe anything that [the CI] is telling [him].” Allowing Gillis to vouch for the CI’s credibility was clearly improper … . The effect was compounded by the People’s summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability … . While we recognize that County Court sustained defendant’s objection, no curative instruction was issued, and we remain concerned that the prosecutor’s remark amplified the effect of Gillis’ improper vouching … . People v Nicholas, 2015 NY Slip Op 06269, 3rd Dept 7-23-15

 

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Road Washout Was Due to a Highway Design Issue for Which Adequate Remedial Planning Had Been Made—The Washout Was Not, Therefore, Caused by a Highway Maintenance Deficiency to Which the Negligence Standard Applies—State Entitled to Qualified Immunity Re: a Vehicle Accident Caused by a Sinkhole

The Third Department determined the maintenance and construction of a culvert, around which the road repeatedly washed out, was a highway design issue, for which the state was protected by qualified immunity, not a highway maintenance issue, for which a negligence standard applies. Claimant was injured when his vehicle went into a sinkhole near the culvert.

Municipalities unquestionably have a duty to maintain roads in a reasonably safe condition … . With respect to highway safety and design, however, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . Here, the gravamen of the claim is that the 9-foot-high, 15-foot-wide oval culvert that carried the Spuytenduiveil Creek underneath Route 8 was too small and should have been replaced. Plaintiff maintains that this condition presented a maintenance and repair issue that defendant was required to address in its proprietary capacity for which basic negligence and not sovereign immunity principles apply … . * * *

In order to successfully invoke the qualified immunity defense, defendant had the burden of demonstrating that its decision with regard to the replacement of the culvert “‘was the product of a deliberative decision-making process'” … . Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan … . If a remedial plan is developed, “liability may result from a failure to effectuate the plan within a reasonable period of time,” but “a reasonable delay justified by design considerations [or] a legitimate claim of funding priorities would not be actionable” … .

Based upon our review of the probative evidence, we agree with the Court of Claims that the replacement of the culvert presented a design and not a maintenance issue and that defendant was entitled to qualified immunity. Evans v State of New York, 2015 NY Slip Op 06288, 3rd Dept 7-23-15

 

Preventing a Party from Carrying Out Its Agreement Constitutes a Material Breach

The Third Department determined Supreme Court properly held that defendants breached the contract. Plaintiff owned a business which produced and sold aggregate stone. Plaintiff entered a lease agreement with defendants which allowed plaintiff to remove stone from a quarry on defendants’ property and required that defendants pay “rent” based upon the amount of stone removed. No stone was removed for some time. Defendants sent a letter indicating they would consider the lease null and void unless plaintiff started up the business within 90 days. The parties then entered discussions, some stone was removed and rent was paid. Thereafter, the defendants unilaterally declared the lease null and void, ordered plaintiff to remove its equipment, and prevented plaintiff from entering the property. Supreme Court found plaintiff had done enough to comply with defendants’ initial demand that plaintiff start up its business and, therefore, defendants’ actions, which prevented plaintiff from carrying out its agreement, constituted a material breach. The Third Department agreed:

“In the case of every contract there is an implied undertaking on the part of each party that he [or she] will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his [or her] part” … . In the April 1996 letter, [defendant] advised [plaintiff]  that the lease was null and void, threatened legal action if plaintiff did not “promptly” remove its equipment from the quarry, and stated that [defendant] did not consider himself bound by the lease because it was void. Two months later, defendants’ counsel advised plaintiff’s counsel that it was defendants’ position that the lease had been rescinded and that plaintiff “ha[d] no right to enter upon the property.” … “[R]efusing to permit the other party to perform is a breach of contract” … . Here, defendants’ unilateral declaration that the lease was null and void, and their threat of legal action if plaintiff did not promptly remove its equipment, followed shortly thereafter by the statement of defendants’ counsel that plaintiff had no right to enter the property, constituted a refusal to permit plaintiff to perform. Galusha & Sons, LLC v Champlain Stone, Ltd, 2015 NY Slip Op 06286, 3rd Dept 7-23-15

 

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Concurrent Inclusory Counts Dismissed and Sentences Vacated—Defense Counsel’s Failure to Request that the Greater and Lesser Counts Be Submitted to the Jury in the Alternative, Although a Clear-Cut Error, Did Not Deprive the Defendant of Meaningful Representation

The Third Department determined defendant was entitled to dismissal of the inclusory concurrent counts and the vacation of the sentences imposed thereon, but was not entitled to reversal based upon defense counsel’s failure to request the that the inclusory concurrent counts be presented to the jury in the alternative (conviction on the greater count is deemed a dismissal of every lesser count).  Although the omission was clear-cut error on defense counsel’s part, the error did not deprive defendant of effective assistance:

…. [T]he two counts of criminal possession of a controlled substance in the seventh degree are inclusory concurrent counts of criminal possession of a controlled substance in the third degree … . “When inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . Therefore, defendant’s misdemeanor convictions of criminal possession of a controlled substance in the seventh degree must be reversed and the concurrent, one-year sentences vacated … .

We are not persuaded, however, that defense counsel’s failure to request an alternative charge on these counts “elevates this case to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel” … . Although counsel erred on a clear-cut issue …, such an error must be viewed in the context of the entire representation, particularly in light of the other charges that defendant faced. Most importantly here, counsel’s error appears to arise from his failure to properly consider the misdemeanor charges of criminal possession of a controlled substance in the seventh degree. While defendant was certainly entitled to representation on those charges, defendant had previously been convicted of a felony drug offense and faced felony charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Given the vastly disparate potential outcomes related to the felony and misdemeanor offenses with which defendant was charged, particularly in light of his prior felony drug conviction …, and absent any proof that counsel’s failure was greater than that of failing to properly attend to the misdemeanor charges, we do not find that defendant was deprived of meaningful representation … . People v Vanguilder, 2015 NY Slip Op 06175, 3rd Dept 7-16-15

 

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Two-Part Inquiry for Determining Whether a Dispute is Arbitrable Under a Collective Bargaining Agreement Clearly Explained and Applied

The Third Department determined the dispute between teachers and the board of education (concerning the board’s hiring of a teacher from an outside agency without posting the position as required by the collective bargaining agreement [CBA]) was arbitrable. The court first determined a provision of the Education Law, which allowed hiring from an outside agency, did not erect a policy/statutory barrier to hiring in accordance with the procedures in the CBA. The statute merely allowed the board to hire from an outside agency, but the statute did not preclude the board from using the hiring process agreed to in the CBA. The Third Department then went on to hold there was a reasonable relationship between the subject of the dispute and the general subject matter of the CBA. the only factors a court can look at to determine arbitrability.  The responsibility for any further inquiry and analysis then passed to the arbitrator:

Petitioner contends that arbitration of the subject matter of the dispute is barred by Education Law § 3602-e and public policy. Determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry, the first issue being “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute” … .

Under the statutory scheme at issue, a “pre[]kindergarten program plan” is defined as a plan “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies” (Education Law § 3602-e [1] [d] …). Petitioner’s argument rests upon Education Law § 3602-e (5) (d), which states that “[n]otwithstanding any other provision of law, [a] school district[] shall be authorized to enter any contractual or other arrangements necessary to implement the district’s prekindergarten plan.” Contrary to petitioner’s contention, this language does not suggest a legislative intent that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services. A more natural reading of Education Law § 3602-e supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA … . * * *

Having found that there is no public policy prohibition, we turn to the second part of the threshold inquiry — that is, whether the parties agreed to submit the subject matter of the dispute to arbitration … . In considering this issue, we must only ascertain if “there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” … . Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, 3rd Dept 7-16-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

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