Could This Case Turn Into a Rare Criminal Legal Malpractice Case?
Legal malpractice in the criminal defense sphere does not, for the most part, exist. Under well settled Court of Appeals cases a criminal defendant may not successfully sue the criminal defense attorney for legal malpractice absent "actual innocence", which is generally defined as acquittal, reversal or exoneration. Britt v. Legal Aid Socy, 95 NY2d 443 (2000) ; Carmel v. Lunney, 70 NY2d 169 (1987). Here is case where plaintiff might make an appropriate showing.
InPeople v Clermont; 2013 NY Slip Op 06806; Decided on October 22, 2013; Court of Appeals we see a case which might be one of the rare possible candidates, if the gun is suppressed on remand.
"Defendant was charged with weapon possession offenses after he was found in possession of a gun as a consequence of a street encounter with the police. Three days before the suppression hearing, his assigned counsel made an application to be relieved as counsel, stating that his associate had quit, he was overwhelmed with work and could not competently represent defendant. Counsel restated these concerns on the record before the hearing commenced and the court stated that the motion would be granted after counsel completed the hearing. Thereafter, the hearing ensued, the court denied suppression, new counsel was appointed and the case proceeded to trial where defendant was convicted of criminal possession of a weapon in the second and third degrees.
On appeal, defendant sought reversal of his conviction based on the ineffective assistance of his first attorney. The Appellate Division affirmed the judgment in a divided decision. The majority concluded that counsel's representation had not fallen below the constitutional standard but the dissent disagreed, reasoning that multiple errors by the attorney in relation to defendant's suppression application warranted remittal of the case to Supreme Court. The Appellate Division dissenter granted defendant leave to appeal to this Court.
We agree with the dissent that defendant is entitled to relief. In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police. At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument. This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error. Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony.
And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant. Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this [*3]prosecution. "
From the Rivera Dissent:
"Defendant was arrested and charged with criminal possession of a weapon. Prior to defendant's trial, counsel moved as part of an omnibus motion to suppress the weapon, a gun seized shortly after defendant's arrest. However, in that branch of defendant's omnibus motion that sought suppression of physical evidence, counsel recited a wholly different factual scenario from the events actually leading up to defendant's arrest and the seizure of the gun. Counsel incorrectly stated that police officers approached defendant while he was seated in an automobile, and that after they forcibly removed him from the vehicle, a gun fell out onto the ground. This was a complete fiction. The correct facts were that the officers had observed defendant walking on the street, arrested him after a chase on foot, and seized the gun from a [*4]private yard near where he was arrested. Additionally, because counsel's legal argument was based on these incorrect facts, he also failed to tailor the legal standards to the specifics of defendant's case. Although counsel's motion papers stated that he was "unaware of many of the relevant facts necessary to [his] preparation of the defense," and requested permission to submit a post-hearing memorandum, "so that [he] might more effectively represent the interests of [defendant]," he never filed such memorandum.
In order to justify police pursuit, the officers must have "reasonable suspicion that a crime has been, is being, or is about to be committed" (People v Holmes, 81 NY2d 1056, 1058 ). Reasonable suspicion encompasses a "quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" (People v Martinez, 80 NY2d 444, 448 [citation omitted]). We have found that "[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" (Holmes, 81 NY2d at 1058). "Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit" (id.[citations omitted]).
Nearly two decades ago, in a case on all fours with the present appeal, we held that flight in combination with a defendant grabbing at his waistband, "does not support a determination that the officers had reasonable suspicion to pursue defendant" (see People v Sierra, 83 NY2d 928, 930 ). In Sierra, we found no reasonable suspicion to pursue a fleeing defendant where "the officers knew only that, after exiting from the back seat of a livery cab that had been stopped for defective brake lights, defendant grabbed at his waistband" (id. [emphasis added]).
Years later, we reiterated that flight must be accompanied by other suggestive conduct in order to support reasonable suspicion justifying a seizure (People v Pines, 99 NY2d 525,526 [citing Martinez, 80 NY2d at 447-48]). In Martinez, we acknowledged that the "[d]efendant had a right to refuse to respond to a police inquiry and his flight when officers approached could not, in and of itself, create a reasonable suspicion of criminal activity" (id. at 448 [citation omitted]). Only after aggregating other compelling circumstances—namely that defendant was observed "removing an instrument known to the police to be used in concealing drugs"—did we find reasonable suspicion (id.) "