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People v. Christian P.

Supreme Court, Bronx County

November 7, 2012

The People of the State of New York,
v.
Christian P., Defendant.

COLLEEN D. DUFFY Justice.

On July 11, 2012, Defendant Christian P. was charged with Assault in the Third Degree, PL 120.00(1), Menacing, PL 120.15, and Harassment in the Second Degree, PL 240.26(1), arising out of an incident on July 10, 2012.

On August 13, 2012, Defendant filed an omnibus motion seeking suppression of statements on the grounds that they were obtained in violation of Defendant's constitutional rights, or, in the alternative, granting a hearing as to the admissibility of the statements. The Defendant also seeks to have the Court preclude the People from using at trial evidence of prior arrests or criminal convictions, bad acts, and prior uncharged criminal, vicious, or immoral conduct and to preclude the People from cross-examining him at trial on any prior arrests, convictions, or any uncharged criminal, vicious or immoral conduct of which the People may be aware. In addition, Defendant seeks to have the Court preclude the use at trial by the People of any statements or identifications which were not properly noticed pursuant to CPL § 710.30(1). Finally, Defendant seeks to have the Court preclude the People from introducing at trial evidence not supplied in response to Defendant's Request for a Bill of Particulars and Demand to Produce and seeks to reserve the right to make additional motions.

In support of Defendant's Omnibus Motion, Defendant submitted a notice of motion signed by a law graduate not yet admitted to the bar. Beneath the law graduate's signature on the notice of motion is, in typeface, "STEVEN BANKS, ESQ., Attorney for Defendant, THE LEGAL AID SOCIETY" and an address for same. No attorney signature appears on the document nor indication of an attorney supervisor. In addition to the notice of motion, Defendant submitted a document purporting to be the affirmation of the law graduate. The document contains the language of an affirmation - "affirms under penalty of perjury" - with respect to the truth and accuracy of the document.

On September 13, 2012, the People filedan opposition to the motion.

For the reasons set forth below, Defendant's motion is denied without prejudice.

RELEVANT RULES AND ORDERS

The Rules of the Chief Administrative Judge, applicable to all cases, civil and criminal, require that every pleading and written motion served on another party or filed or submitted to the court must be signed by an attorney, or by a party if the party is not represented by an attorney. 22 NYCRR 130-1.1a. The court must strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party, absent good cause shown. Id.

Pursuant to a January 12, 2012 Order of the Appellate Division, First Department ("Practice Order"), law graduates who have not yet been admitted to the bar may represent and advise clients of The Legal Aid Society in criminal matters, and may appear in court on behalf of such clients, [1] under the supervision of the Legal Aid Society. See Practice Order, dated January 12, 2012, In the Matter of The Legal Aid Society, ¶ 3(b). In addition, such law graduates may "perform all duties, functions and responsibilities of attorneys in the conduct of the foregoing activities, including... drafting documents, briefs and memoranda of law... under the supervision of a [Legal Aid] Society staff attorney..." Id. at ¶ 3(f). All submissions to a court made pursuant to the Practice Order must be signed by counsel for the Legal Aid Society, who must be an admitted attorney. Id. at ¶ 10.

CONCLUSIONS OF LAW

Defendant's omnibus motion is denied without prejudice.

The Court cannot consider the proffered Notice of Motion as it fails to comply with the requirements of Rule 130-1.1a of the Rules of the Chief Administrative Judge, in that it is not signed by an attorney. It also fails to comply with the Practice Order, in that it is not signed by an attorney with the Legal Aid Society, as supervisor of the law graduate. Upon submission, on or before November 13, 2012, of a properly signed notice of motion, this Court will consider Defendant's requests for relief. [2]

In addition, the purported "affirmation" of the law graduate is deficient on its face. Pursuant to CPLR § 2106, only the affirmation of an attorney, admitted to practice in New York, or of an osteopath, physician or dentist, authorized by law to practice in the state, may be served and filed in lieu of an affidavit. See Laventure v. McKay, 266 A.D.2d 516, 517 (2d Dept. 1999)(architects are not among those entitled to submit affirmations); Pichardo v. Blum, 267 A.D.2d 441, 442 (2d Dept. 1999) (affirmation of chiropractor is not admissible).

The Court notes that the Practice Order governing the scope of the activities a law graduate may perform under the supervision of a Legal Aid Society attorney contains no provision for law graduates executing affirmations. Indeed, the Practice Order expressly provides that ...


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