Poquee v Wheldon 2024 NY Slip Op 51245(U) Decided on September 5, 2024 Supreme Court, Albany County, Hartman, J., restates the well settled (and perhaps unfair) rule that a criminal defendant has no good claim against the defense attorney absent “actual innocence” which generally means acquittal, exoneration or reversal on appeal.
Practitioners get a large volume of calls asking whether the criminal defense attorney can be sued, accompanied with specific shortcomings of the attorneys. Sadly, the answer is almost always a categorical “no.”
“In this legal malpractice action, defendants John Wheldon, Esq., individually and as Assistant Public Defender for the County of Albany, and the County of Albany (defendants),[FN1] move pre-answer to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) and (a) (7). Plaintiff opposes. For the reasons that follow, defendants’ motion is granted, and the action is dismissed with prejudice.”
“It is well established that “[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [a] plaintiff must allege [the additional element of] his innocence or a colorable claim of innocence of the underlying offense” (Carmel v Lunney, 70 NY2d 169, 171 [1987]; see Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445 [2000]; Shields v Carbone, 78 AD3d 1440, 1443 [3d Dept 2010]). But “so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie” (Carmel, 70 NY2d at 171). Said another way, “[i]t 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” (Britt, 95 NY2d at 448 [2000]).
Plaintiff’s amended complaint makes no allegation of innocence. And it is undisputed that plaintiff entered a guilty plea, which remains undisturbed, in satisfaction of the underlying charges once his initial conviction after trial was vacated on the ground of ineffective assistance of counsel. Under these circumstances, plaintiff’s undisturbed “plea of guilty in the criminal proceeding bars recovery for legal malpractice allegedly committed by the defendant[s] in that proceeding” (Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], appeal dismissed & lv denied 88 NY2d 952 [1996]; see Britt, 95 NY2d at 448; Carmel, 70 NY2d at 171; Shields, 78 AD3d at 1443; cf. Arnold v Devane, 123 AD3d 1202, 1203 [3d Dept 2014]). Moreover, plaintiff fails to advance any compelling reason to depart from the long-standing “policy considerations [that] require different pleading and substantive rules” in legal malpractice actions arising from representation in criminal proceedings (Carmel, 70 NY2d at 173 [citation omitted]).
And “the fact that the alleged malpractice neither induced nor otherwise had any causal effect on the plaintiff’s ultimate conviction, and instead allegedly caused plaintiff to remain in prison longer than necessary, has no bearing on the elements of a cause of action, as public policy prevents the maintenance of a malpractice action where the plaintiff cannot assert his innocence” (Rosado v Legal Aid Socy., 12 AD3d 356, 357 [2d Dept 2004]; see Boomer v Gross, 34 AD3d 1096, 1096-1097 [3d Dept 2006]; Biegan v Paul K. Rooney, P.C., 269 AD2d 264, 265 [1st Dept 2000]; Malpeso v Burstein & Fass, 275 AD2d 476, 477 [1st Dept 1999]). Plaintiff’s argument that this is a unique case warranting an exception to the rule of Carmel v Lunney is unavailing.”