Dombrowski v. Bulson, 19 N.Y.3d 347, 948 N.Y.S.2d208 (Ct.of Appeals, 2012)
NY: Underlying Criminal Defense; Ineffective Assistance of Counsel
FACTS: Plaintiff convicted in New York of attempted rape and endangering the welfare of a child. His motion to vacate the conviction on the grounds of "ineffective assistance of counsel" is denied without a hearing. Plaintiff brings a habeas corpus proceeding in federal court. The Magistrate Judge found that "the errors of defense counsel made it difficult for the jury to make a reliable assessment of the critical issue of the victim’s credibility". The habeas petition was granted on condition that further prosecution be brought within 60 days. The State failed to do so. The indictment was dismissed.
Plaintiff now brings malpractice action seeking, inter alia, non-pecuniary damages for his defense lawyer’s ineffective assistance of counsel asserting he was incarcerated for over 5 years, was subject to post-release supervision which came to an end only after the federal habeas petition was granted.
ISSUE: Are non-pecuniary damages available to a plaintiff in a legal malpractice action arising out of a botched criminal defense based on ineffective assistance of counsel?
RULING: No.
The Appellate Division decision, acknowledging that non-pecuniary damages are not available to the legal malpractice plaintiff in actions arising from underlying civil cases, held that they are available when the underling proceedings are criminal, reasoning that the underlying wrong was akin to false imprisonment or malicious prosecution where loss of liberty is compensable in those actions.
The Court of Appeals, however, disagreed and reversed the Appellate Division, rejecting the appellate court’s analogy to those civil actions which are intentional torts unlike the alleged misconduct of Plaintiff’s criminal defense attorney, which was not intentional.
It makes sense [wrote the Court] that the scope of recovery for deliberate torts is broader than for torts based on the failure to exercise skill or care.
The Court also emphasized the "negative" and "devastating consequences" the criminal justice system would suffer with a different rule in criminal cases than there would be in civil based malpractice actions, which would include a
…chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions.
Tagged with: criminal defense, Damages, defense counsel, false imprisonment, ineffective assistance of counsel, malicious prosecution, New York, non pecuniary damage