Weiner v City of New York
Annotate this CasePlaintiff, an employee of the New York City Fire Department, applied for and received workers' compensation benefits from the city. Plaintiff subsequently commenced this action against the city and its Parks and Recreation Department, alleging both common law negligence and a cause of action under General Municipal Law 205-a. The city moved to dismiss the complaint pursuant to CPLR 3211, arguing that plaintiff's receipt of workers' compensation benefits barred his lawsuit. The court concluded that it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under section 205-a. Accordingly, the court affirmed the judgment.
Decided on May 30, 2013
No. 96
[*1]The People & c., Respondent,
v
Isaac Diggins, Appellant.
Roy L. Reardon, for appellant.
Sheryl Feldman, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted and the case remitted to Supreme Court for further proceedings on the indictment. [*2]
It is well established that a defendant may not, by his absence alone, "waive his right to effective assistance of counsel" (People v Aiken, 45 NY2d 394, 398 [1978]). Although a defendant's willful absence from trial surely hampers an attorney's ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel's lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant's cooperation with his attorney in formulating a defense before absconding, there was a "reasonable basis for an active defense" (United States v Sanchez, 790 F2d 245, 254 [2d Cir 1986]).
* * * * * * * * * * * * * * * * *
Order reversed, defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted, and case remitted to Supreme Court, New York County, for further proceedings on the indictment, in a memorandum. Chief Judge Lippman and Judges Graffeo, Pigott and Rivera concur. Judges Read and Smith dissent and vote to affirm, concluding that defendant's trial counsel pursued a protest strategy (see People v Diggins, 11 NY3d 518, 525 [2008]). Judge Abdus-Salaam took no part.
Decided May 30, 2013
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