A criminal defendant is convicted and takes an appeal.  He loses.  Criminal defendant makes a CPL 440 motion.  He loses.  Now he finds out that no one seems to have his grand jury indictment.  Is that grounds for a successful appeal?  We don’t know, but in Lee v Pierre
2011 NY Slip Op 32911(U); November 1, 2011; Supreme Court, New York County;Docket Number: 403536/10; Judge: Anil C. Singh was faced with this question, and a motion to dismiss.

Was this a breach of contract or legal malpractice?   Here, the attorney filed an appeal, while the correct act was to file a motion seeking leave to appeal.  The outcome was negative.  Is this grounds for a legal malpractice case?  Justice Singh said no.

"“A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying  action” (Cummings v, Donovan, 36 A.D.3d 648, 643 [2d Dept 20071). “Furthermore, to state a cause of action for legal malpractice arising from negligent misrepresentation in a criminal proceeding, the plaintiff must allege his or her innocence or a colorable claim of  innocence of the underlying offense” (u)(se e also Ben-zvi v, Kronish Lieb Weiner & Hellman LLP, 278 A.D.2d 167 [lStD ep’t 20001; Daly v. Peace, 54 A.D.3d 801 {2d Dep’t 20081; Boomer v. Gross, 34 A.D.3d 1096 [3d Dep’t 20061). After careful consideration, the Court finds that the documents exhibited by defendant are sufficient to make out a prima facie case in favor of defendant. The Court finds further that plaintiffs conclusory, self-serving affidavit is insufficient to establish the existence of any genuine issue of material fact or otherwise rebut defendant’s prima facie case."