A successful criminal defense legal malpractice case is the rarest form of the species.  Meralla v Goldenberg  2015 NY Slip Op 01873 [126 AD3d 449]  March 5, 2015  Appellate Division, First Department  has everything that the criminal defendant needs.  As the Court of Appeals has repeatedly held, “In order to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential plaintiffs from asserting innocence in a civil suit . . . . Accrual occurs “when the claim becomes enforceable, i.e. when all elements of the tort can be truthfully alleged in the complaint” . . . .

It is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof . . . . [A] criminal legal malpractice plaintiff cannot assert innocence while the criminal charges remain pending. Britt v. Legal Aid Soc’y, Inc., 95 N.Y.2d 443, 447-48, 741 N.E.2d 109, 112, 718 N.Y.S.2d 264, 267 (2000)

“In this legal malpractice action, plaintiff alleges that defendant attorney’s failure to move to sever plaintiff’s criminal trial from that of a codefendant, and to move to exclude certain evidence based on the collateral estoppel effect of a prior trial in which plaintiff was acquitted of a related crime, caused him to be convicted and incarcerated. Plaintiff served more than six years in prison before this Court overturned his conviction based on defendant’s ineffective assistance of counsel (People v Meralla, 228 AD2d 160 [1st Dept 1996], lv denied 88 NY2d 989 [1996]). After the prosecution determined that plaintiff could not be retried, he commenced this action to recover damages against defendant.”

“As this Court held on the appeal overturning plaintiff’s conviction, defendant’s delay in moving to exclude evidence based on collateral estoppel, and failure to seek a severance before the second trial, “amounted to fundamentally flawed, less than meaningful representation” and “substantially impaired the defense” (Meralla, 228 AD2d at 161). Accordingly, drawing all inferences in favor of plaintiff as the nonmoving party (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [1st Dept 2011]), an issue of fact exists as to whether defendant’s alleged negligence was the proximate cause of plaintiff’s alleged injuries (see Kaminsky v Herrick,[*2]Feinstein LLP, 59 AD3d 1, 9 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). It cannot be said, as a matter of law, that the outcome of the matter would have been substantially the same even if defendant had made the motions before trial and in writing (see id.).”