In what may be her last published decision before retirement Justice Emily Jane Goodman enters a field that has not been touched for years, and for which there seemed to be certainty on what damages were permitted.  In legal malpractice, a claim by a criminal defendant for legal malpractice  is almost never successful, and when it is, damages are generally (as in all legal malpractice) limited to pecuniary loss.  In D’Alessandro v Carro ;2012 NY Slip Op 30529(U); February 29, 2012; Supreme Court, New York County ;Docket Number: 100135/2011 ; Judge: Emily Jane Goodman finds to the contrary.

Plaintiff was tried in New York County for kidnapping, and when convicted, sentenced to the max.  He had a good CPL 30.30 claim for speedy trial violations.  The 30.30 claim was not raised prior to trial, and when plaintiff hired an attorney to appeal, the 30.30 claim was once more not raised.  It should have been, as eventually, the 1st Department granted a writ of Corum Nobis.

From the Decision:  "Plaintiff served 14 and a half years of his term and was released on parole. He then moved for a writ of error coram nobis’ on the ground that the trial court improperly determined that the speedy trial provision was not violated, and noted his
attorney’s failure to appeal the issue in the direct appeal. The appellate court granted the writ (People v. D‘Alessandro, 2010 WL 2652447 [Ist Dept 20101). It found that ’ The statute creates a time frame wherein the People must be ready for trial, and if the People are not “effectively” ready
for trial, the defendant can be released from custody or the case can be dismissed. Generally, a writ of error coram nobis is the remedy for setting aside an erroneous judgment ‘that resulted from an error of fact in the proceeding. 

"the speedy trial argument was "clearly meritorious" and determined that, notwithstanding Defendants’ otherwise effective assistance, its failure to raise that "clear cut and dispositive"
argument warranted the grant of the writ. The court held: Because it is "clear-cut" that defendant would have prevailed on the speedy trial issue had his appellate counsel raised it, he is entitled to a writ of error coram nobis.

Next, Defendants argue that plaintiff does not, and cannot, make a colorable claim of innocence.
[TI0 state a cause of action for legal malpractice arising from negligent representation in a criminal
proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense . . . for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie . . . This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding . . .
***
We require that the criminal client bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt
(Britt v Legal Aid SOC., Inc., 95 NY2d 443, 446 [200O][citations omitted]). Where an individual cannot assert his innocence, public policy ”prevent maintenance of a malpractice action
against his attorney” (Carmel v Lunney, 70 NY2d 169, 173 (1987)

In other words, an otherwise guilty individual should not be able to profit from his criminal acts due to the procedural mistakes of his attorney. Defendants argue that plaintiff cannot prove that the
conviction was due to his attorney’s actions alone because “the plaintiff is factually guilty.” In support, Defendants cite to several items of documentary evidence to prove guilt, including
the 1993 judgment of conviction, which was reversed, and the 1996 appeal decision, which was recalled and vacated. Defendants also cite to the 1993 jury verdict, which was not explicitly vacated;
however, the indictment from which that verdict followed was dismissed (People v D‘Alessandro, 2010 WL 2652447 [lst Dept 2010). plaintiff, dated September of 1996, wherein he stated ‘ [ i l f I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence . . . I would have sought a plea disposition in this case, regardless of my guilt or innocence” (Hyland Aff., Ex. E). Defendants claim this unsigned, unsworn affidavit is an acknowledgment of guilt.
Finally, Defendants provide an unsigned affidavit of It is not.
 

While to a casual reader, rather than a legal scholar, it may be sufficient to rely -on the conviction as proof of guilt, but for the denial of the 30.30 motion, it would not have gone to a jury. And if not for the failure to raise the 30.30 decision on appeal, the duration of plaintiff’s incarceration would have been dramatically reduced.

.The ten year old Wilson theory of damages was not adopted by the Fourth Department in the recent case of Dombrowski, supra. In that matter, plaintiff was convicted of two felonies.
assistance of counsel. The motion was denied. Plaintiff then commenced a habeas corpus proceeding contending ineffective assistance of counsel. The petition was granted and the
indictment dismissed; however, plaintiff had served five years in He moved to vacate the conviction for ineffective assistance of counsel.  The petition was granted and the indictment dismissed; however, plaintiff had served five years in jail. Plaintiff then sued his defense attorney for legal
malpractice for, inter alia, loss of liberty. The Supreme Court granted summary judgment dismissing the complaint on the ground that he had no right to recover non-pecuniary damages.
Fourth Department reversed the decision. The It noted that the trend amongst many other states is to allow recovery for loss of liberty in criminal legal malpractice cases, and held that [A] plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her
attorney in a criminal case may recover compensatory damages for the actual injury sustained, i . e . , loss of liberty (Dombrowski, 79 AD3d, at 1590). Placed in the current context, if the Appellate
Division, First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages is central, perhaps it would be viewed differently."