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#291 Third Department Caselaw Round-Up for January 26, 2012, Part 1 of 3

150 Post-1 01-26-12, Part 1 Third Department January.pngThe first case concerns the filing of a petition for a writ of habeas corpus in a criminal matter – and why it’s usually not a good idea.

The second case is an excellent illustration of how convoluted cases can get when family law intersects with criminal law. It’s also an appellate tour de force by an attorney who is clearly at the top of his game (hey, credit where credit is due, my friends!).

150 Post-2 Chemung County.pngCase #138 #512055
People of the State of New York ex rel. Riley v. Bradt, ___ A.D.3d ___, ___ N.Y.S.2d ___ Chemung Supreme – Reynolds Issues: Habeas Corpus Cited statutes: CPLR Art. 70 Affirmed

The defendant was convicted of the crime of Course of Sexual Conduct Against a Child in the First Degree, and was sentenced to twenty-five (25) years in prison, with twenty (20) years of post-release supervision. Apparently feeling that he had nothing to lose, the defendant filed a petition for a writ of habeas corpus, which the Supreme Court denied without a hearing. The defendant-petitioner then appealed.

The Third Department affirmed, stating that “it is well settled that habeas corpus relief is not the proper remedy to address matters that could have been raised on direct appeal or in a CPL article 440 motion.” The issue, in this case, was a challenge to the subject matter jurisdiction of the trial court (good luck with that), claiming that the indictment was defective due to an alleged improper filing of the instrument.

First of all, this sounds like the work of a jailhouse lawyer, since few attorneys would make this sort of mistake (the petitioner is, after all, pro se). Second of all, not only is this the wrong avenue for relief but the relief sought seems unduly narrow; one would want to raise as many substantive issues as possible, rather than a single issue that is this technical.

150 Post-3 Franklin County.pngCase #139 #103385/103873
People v. Trombley, ___ A.D.3d ___, ___ N.Y.S.2d ___ Franklin County – Main Issues: Alcohol Abuse; Criminal Charges; Ineffective Assistance of Counsel; Orders of Protection; Witnesses Cited statutes: CPL §190.52; 190.75; 440.10; FCA Art. 10; PL §215.50; VTL §511 Affirmed

This one’s a bit long and serpentine.

This appeal concerns two (2) separate matters: an appeal from a judgment and an appeal from a subsequent order. The defendant was convicted, upon his guilty plea, of the crime of Criminal Contempt in the Second Degree. The defendant also filed a 440 motion to vacate his judgment of conviction, which was denied.

As the result of a neglect proceeding apparently brought in Essex County Supreme Court, an order of protection was issued against the defendant, the terms and conditions of which included refraining from criminal offenses against his sons and the mother of his sons, as well as refraining from the possession and consumption of alcohol.

A year or so later, after a late-night argument with the sons’ mother outside (of all places) a bar, the defendant was charged with Criminal Contempt in the First Degree for violating the terms of the order of protection.

The matter was then presented to a grand jury, at which the defendant waived immunity (bad), testified on his own behalf (worse), and admitted to violating the order of protection (horrible). This is called walking into the lions’ den, and it never ends well. Unsurprisingly, the defendant was indicted, but on the lesser charge of Criminal Contempt in the Second Degree, a misdemeanor.

The defendant was thereafter released under supervision of probation – only to have the People seek to revoke same based upon a pending charge of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (AUO2). Both of the defendant’s charges were later disposed of via the defendant pleading guilty to the contempt charge in full satisfaction of the AUO2 charge, with the sentencing court making no promises as to sentence.

On the date of sentencing, the defendant sought an adjournment to retain a particular attorney, having been represented by assigned counsel up to this point. The court granted the adjournment. In the meantime, the defendant’s release under supervision of probation was revoked and he was remanded to jail.

At the rescheduled sentencing date, the defendant revealed to the court that he had been unable to retain the services of the attorney he had sought. In the meantime, further complicating matters, the defendant had sent an ex parte letter to the court requesting to withdraw his plea. The defendant’s assigned counsel refused to join the defendant’s motion “but placed on the record that she had advised [the] defendant of his right to retain substitute counsel, to represent himself and to pursue his pro se motion to withdraw his plea.”

However, after inquiry by the court, the defendant nonetheless proceeded to sentencing and did not request any further adjournments. The court then sentenced him to 365 days in jail and thereafter denied the defendant’s 440 motion without a hearing. The defendant’s appeal ensued.

Where to begin?

Well, for starters, the defendant, for the very first time, attacked the reasonableness of the order of protection, his violation of which got him into all this trouble in the first place. Not happening says the court. First, the defendant never previously sought to vacate, modify or appeal that order of protection. Second, the defendant forfeited his right to challenge the validity of the order of protection by pleading guilty to violating it and thereafter waiving his right to appeal. Third, the defendant failed to preserve this claim by abandoning his motion to withdraw his plea.

After attacking the validity of the order of protection, the defendant turns on his attorney (shocker!). First, the record illustrated that assigned counsel was able to negotiate a favorable plea for the defendant, given the charges he was facing. Second, the defendant (again) forfeited the right to challenge his attorney’s motion practice and discovery by pleading guilty to the favorable plea. Third, nothing in the record calls into question the voluntariness of the defendant’s plea.

The court not going for it? Okay, well, why not implicate your attorney’s conduct at the grand jury proceedings that you just had to admit guilt in front of!? First (and once again), any alleged ineffective assistance of counsel at the grand jury was precluded by the defendant’s guilty plea. Second, no one put a gun to his head to waive immunity, testify, and then admit guilt to the grand jury! Furthermore, the grand jury minutes apparently revealed that the defendant’s attorney took the time and effort to explain all of this to him (presumably together with the potentially terrible ramifications involved).

Next, the defendant argued that the court “abused its discretion in summarily denying his pro se request to withdraw his guilty plea”. First, it was none other than the defendant himself who abandoned this motion! Second, notwithstanding the defendant’s abandonment of his motion to withdraw his guilty plea, he opted to proceed to sentencing. Third, the defendant had entered a valid plea and he did not negate his plea admissions in his ex parte letter to the court.

Next, the defendant argued that the court abused its discretion at sentencing in issuing a new order of protection in favor of his sons’ mother. Here, the Third Department agrees that the court erroneously labeled the mother as a “victim” when she should have been more appropriately described as a “witness”. But, otherwise, the issuance of the order of protection was nonetheless found to be valid and well within the court’s discretion.

Next, the defendant argued that the court abused its discretion in its summary denial of his 440 motion without a hearing. However, no new matters were raised in the 440 motion that were not already raised in the direct appeal. The remaining arguments within the defendant’s 440 motion were found wanting.

So, after all of that, the defendant still lost on appeal. But it sure as hell wasn’t for lack of trying! Quite the contrary!

This case was actually an enjoyable read if only due to its complexity. The complexity alone forces you to read it several times. By the third review, I was struck by the sheer intellectual force of the appeal – oceanic waves of unremitting legal argument. Simply brilliant in its execution: as one argument reared its head and crashed upon the court, another took its place, and another, and another, and another. THAT is AMAZING lawyering. Never surrender. Fight and fight and fight and raise EVERY plausible issue that you can think of. Throw EVERYTHING at the wall and see what sticks.

Who was this amazing appellate counsel? Go and see for yourself. Without mentioning his name, I will nonetheless break my recently invoked rule and say this: I know him and I have always been impressed by him. He is extremely thorough. I don’t even want to think about how much time went into perfecting this appeal. Excellent work. I’m sure the Third Department feels the same way.

Caselaw Round-Up Score Card:

Affirmed: 94 (67.63%)
Decision Withheld: 6 (4.32%)
Dismissed: 8 (5.76%)
Modified: 11 (7.91%)
Reversed: 19 (13.67%)

Total: 139