Former Prisoner May Pursue Malpractice Suit Against Attorney-Former Judge

Former Prisoner May Pursue Malpractice Suit Against Attorney
The New York Law Journal by Andrew Keshner  -  March 12, 2012

A man whose kidnapping conviction was vacated only after he had spent almost 15 years in prison can proceed with a $26 million legal malpractice suit against his former appellate attorney, a state judge has ruled.  The malpractice action by Giuseppe D'Alessandro against attorney John Carro was filed after the Appellate Division, First Department, issued an unusual writ of error coram nobis faulting Mr. Carro for failing to raise "a clearly meritorious speedy trial argument" on appeal (NYLJ, July 1, 2010).  On Feb. 29, Manhattan Supreme Court Justice Emily Jane Goodman rejected a motion to dismiss D'Alessandro v. Carro, 100135-2011, filed by defendants who include Mr. Carro, other attorneys who worked on the case and the firm of Carro, Carro & Mitchell.  The defendants sought dismissal on two grounds: failure to state a cause of action and the existence of documentary evidence supporting the contention that their former client was "factually guilty." At the very least they sought a dismissal of non-pecuniary damages.  But their arguments did not sway Justice Goodman. "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 [Criminal Procedure Law] 30.30 motion, it would not have gone to a jury. And, if not for the failure to raise the 30.30 [speedy trial] decision on appeal, the duration of plaintiff's incarceration would have been dramatically reduced," she wrote.  In 1989, while working as a restaurant manager, Mr. D'Alessandro allegedly confronted an employee he suspected of stealing $3,000 from the cash register with a firearm. Seeking a confession, Mr. D'Alessandro then allegedly forced the employee into the restaurant basement and held him captive for several hours.  Prosecutors initially offered to allow Mr. D'Alessandro to plead to a lesser crime than second-degree kidnapping. Mr. D'Alessandro refused and prosecutors said they warned him that rejecting the deal would lead to a first-degree kidnapping charge, which carried a minimum sentence of 15 years. His trial lawyer moved to enjoin the district attorney from filing the second indictment and about 10 months later moved to have the indictment dismissed on speedy trial grounds. That motion was rejected by now-retired Justice Jerome Hornblass.  In 1991, a Manhattan jury convicted Mr. D'Alessandro on charges that included first-degree kidnapping.

To handle his appeal, Mr. D'Alessandro turned to Mr. Carro, who had served 25 years on the First Department bench before retiring. Mr. Carro filed an unsuccessful appeal that raised several issues but did not mention the speedy trial question. People v. D'Alessandro, 230 AD 2d 656.  Mr. Carro told the Law Journal in 2010 that the record he received as he prepared the case on appeal in 1996 did not refer to the speedy trial motion or its denial.  In 2000, Mr. D'Alessandro raised the speedy trial issue in a pro se motion for writ of error coram nobis, but that was denied by the First Department. People v. D'Alessandro, 272 AD 2d 1002.  However, a reframed motion presented by Brian Gardner of Sullivan Gardner convinced the appellate court in 2010 to grant the writ. Mr. Gardner also represents Mr. D'Alessandro in his current malpractice action.  Justice Angela M. Mazzarelli wrote for the court in 2010 in People v. D'Alessandro, M-2765A, that Mr. Carro, then of Carro, Velez, Carro & Mitchell, had given a "generally adequate" performance, but the failure to offer the speedy argument was "clear cut" and "dispositive." Mr. D'Alessandro, who has continued to maintain his innocence, was incarcerated for 14 1/2 years until he was freed on parole in 2008. On his release, he was immediately taken into custody by federal immigration authorities for another 18 months.  In allowing Mr. D'Alessandro's malpractice suit to go forward, Justice Goodman ruled that by pointing to the First Department writ, Mr. D'Alessandro had adequately pleaded that Mr. Carro's failure to raise the speedy trial issue was the proximate cause of his incarceration.  The defendants argued Mr. D'Alessandro did not meet his burden of proving his actual innocence. "The plaintiff cannot prove that the conviction was due solely to his attorney's actions because the plaintiff is factually guilty, despite the fact that his conviction was later vacated due to constitutional and procedural safeguards of speedy trial," they contend in court papers.  But, Justice Goodman observed, the conviction had been reversed and the denial of the 1996 appeal had been vacated while the indictment had been dismissed.  Defendants also cited an unsigned September 1996 affidavit where Mr. D'Alessandro stated, "If 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."  Justice Goodman said the unsigned and unsworn affidavit could not be viewed as an acknowledgment of guilt.  "Defendants rely solely on court documents that are no longer valid or binding, and an unsigned affidavit of dubious value," she said.  The judge also rejected the defendants' arguments against non-pecuniary damages in a legal malpractice action arising out of a criminal case.  Calling the loss of liberty "the most serious punitive measure in this state," Justice Goodman observed that, had the speedy trial issue been raised on the direct appeal, Mr. D'Alessandro would have spent 10 fewer years in prison. "Some would argue that imprisonment is a fate worse than loss of life," Justice Goodman wrote. "Yet a physician can be assessed non-pecuniary damages in malpractice causing the loss of life. The inability to seek damages for the taking of freedom, even after due process—but in error—strikes this court as paradoxical and an unintended diminution of the effects of loss of liberty."  In an interview, Mr. Gardner said he and his client were "very pleased" with the ruling, adding that Justice Goodman had taken the time to consider "harm wrought by wrongful incarceration." Thomas W. Hyland, Jeffrey J. Cunningham and A. Ernest Tonorezos of Wilson Elser Moskowitz Edelman & Dicker represented the defendants. Mr. Hyland did not return a call for comment.  Mr. Carro also did not return a call for comment.  Justice Goodman retired from the bench on March 2. The case has been assigned to Manhattan Acting Supreme Court Justice Shlomo S. Hagler.  Andrew Keshner can be contacted at akeshner@alm.com