Jin C. v Juliana L.

[*1] Jin C. v Juliana L. 2010 NY Slip Op 52171(U) [29 Misc 3d 1236(A)] Decided on November 29, 2010 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2010
Supreme Court, Kings County

Jin C., Plaintiff,

against

Juliana L., Defendant.



XX/10



Attorney for the Plaintiff

Virginia Geiss, Esq.

26 Court Street, Suite 2410

Brooklyn, New York 11242

Attorney for the Defendant

George M. Gilmer, Esq.

943 Fourth Avenue

Brooklyn, New York 11232

Attorney for the Child

Randi Karmel, Esq.

425 Park Avenue, 27 Fl

New York, New York 10022

Jeffrey S. Sunshine, J.

The following papers numbered 1 to 3 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1, 2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations) [*2]

Affidavit (Affirmation)

Other PapersMemos of Law

Introduction

This court is called upon to determine (1) whether the attorney for the defendant's application to be relieved as attorney of record should be granted; (2) if the defendant's applications brought pro se while still represented by counsel are properly before the court; (3) whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c); (4) whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child's genitalia and buttocks which were annexed exhibits to defendant's order to show cause.Defendant's Counsels Application to be Relieved

The defendant is presently represented by an attorney of her own choosing, George Gilmer. Defendant's counsel moved by order to show caused dated November 5, 2010, to be relieved. Mr Gilmer seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about Mr. Gilmer and his representation of her. In open court, on November 17, 2010, defendant stated she wished to discharge Mr. Gilmer and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

Mr. Gilmer is defendant's third attorney of record.[FN1] Previously, defendant was represented by pro bono counsel, a New York City law firm. On March 10, 2010, a consent to change attorney was filed and the defendant was substituted as attorney pro se. On May 5, 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of custody, visitation and an order of protection. Although not initially disclosed to the court by defendant, this attorney simultaneously represented defendant in Family Court. On August 10, 2010, defendant was again substituted pro se for this attorneyon consent. The attorney had moved by order to show cause, dated August 13, 2010, to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel to wit: Mr. Gilmer unbeknownst to the court assigned attorney.After having discharged the court appointed counsel and hired private counsel, [*3]defendant seeks to now have the court appoint her another attorney. Mr. Gilmer represented the defendant in an all day temporary custody hearing on October 7, 2010, before this court. The court after the hearing awarded temporary custody of the infant issue to the father. He is the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence; on one occasion he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were "no prior applications" for an order of protection notwithstanding the present application in this matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure to this court of the defendant's application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties' of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on November 17, 2010. That hearing was adjourned so Mr. Gilmer could make the present application to be relieved because of defendant's alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and not informing Mr. Gilmer of her intent to do so. On November 22, 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

Mr. Gilmer requests a 30 day stay of all proceedings pursuant to CPLR 321 (c). The court scheduled the hearing on the wife's request for an order of protection first scheduled for November 10, 2010, and adjourned to November 17, 2010 at defendant's counsels request. However, this instant application prevented that hearing from going forward. That hearing is now scheduled for December 10, 2010.

Defendant's Pro Se Applications

Defendant's first pro se order to show cause is dated November 9, 2010, and seeks temporary custody of the parties' child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court.Shortly thereafter, defendant presented another order to show cause on November 17, 2010. This order to show cause was redated on November 17, 2010, due to defendant's failure to serve same and is returnable on December 10, 2010. Defendant annexed to this application photographs of the parties' child's genitalia and matter removed from the child's nose by insertion of a cotton swab. The photographs of the naked child were removed from the application and placed in a sealed envelope which is maintained by the part clerk. The third order to show cause, like the two preceding it seek, inter alia, similar [*4]requests for relief.

Defendant's second pro se order to show cause is dated November 17, 2010. Defendant seeks temporary custody; an expanded visitation schedule; new counsel; forensic evaluation; and for the court to change the attorney for the child.[FN2]

Plaintiff's Application

Plaintiff moved by order to show cause dated November 17, 2010 wherein he seeks the suspension of visitation and supervised visitation. This application is returnable on December 10, 2010.

The Appeal

Defendant filed an appeal, pro se at the Appellate Division, Second Department. She sought leave to appeal two orders of this court " . . . dated October 6, 2010, and October 7, 2010, respectively, to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County" (Citation omitted to protect identity). On November 18, 2010, the Appellate Division, Second Department rendered a decision and order on motion wherein it was:

ORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,

ORDERED that the branches of the motion which are to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County, are denied as academic; and it is further,

ORDERED that the application is denied.

Interpreter

At the initial appearance, defendant requested a Mandarin interpreter which was provided, although defendant often lapsed into using the English language or answered questions in English before the translation was completed. At the temporary custody hearing defendant did not request an interpreter and testified in rapid and competent [*5]English. In fact, it was necessary for this court to admonish defendant to slow down based upon her rapid speech pattern. Plaintiff's counsel also represented to the court that defendant appeared at the Appellate Division, Second Department and spoke in English. All counsel indicated that defendant converses with them in English and the court has observed defendant speak in English, answer in English and respond to her attorney while the court and others are speaking in English. All of defendant's submission are in English.

Now defendant requests an Indonesian interpreter for the first time. The Indonesian interpreter was present in court on November 17, 2010. Notwithstanding the interpreters presence, defendant at times used the interpreter and at other times did not, but readily understood and spoke English in response to the court's questions to Mr. Gilmer and responded to Mr. Gilmer in English. Defendant's counsel noted that she recently became a United States citizen. Her written submissions are hand written in English.

Discussion

Relieved as Counsel

"As a general rule, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice (see Matter of Dunn, 205 NY 398, 403, 98 N.E. 914; Lake v. M.P.C. Trucking, 279 AD2d 813, 718 NYS2d 903)." (Rivardeneria v. New York City Health and Hospitals Corp.,

306 AD2d 394, 760 NYS2d 877 [2 Dept. 2003]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision should not be overturned absent a showing of an improvident exercise of discretion (see, Ben-Yu Zhan v. Sun Wing Wo Realty Corp., 208 AD2d 668, 617 NYS2d 523; Haskell v. Haskell, 185 AD2d 333, 586 NYS2d 630)." (Khan v. Dolly,

39 AD3d 649, 833 NYS2d 608 [2 Dept.,2007] citing Cashdan v. Cashdan, 243 AD2d 598, 663 NYS2d 271 [2 Dept.,1997]).

It is clear to this court that there is a breakdown in the attorney client relationship between defendant, and Mr. Gilmer and defendant's conduct renders it unreasonably difficult for counsel to carry on his employment. As such Mr. Gilmer can no longer serve as the attorney of record. Mr Gilmer stated by way of affidavit that

[t]he Defendant has become increasingly uncooperative with counsel. Your affirmant made repeated attempts to go over the substantive issues of the Defendant's case and advise her accordingly; however the Defendant either refuses to adhere to advice and /or blatantly ignores such advice. Furthermore Defendant has filed an Appeal and Family Offense Petition in this matter without consulting me. I did not find out about the filing of the Family Offense petition (which was filed in Queens County Family Court) until the Attorney for the Plaintiff notified me.

It is also clear that defendant has the right to discharge her privately retained attorney of record herein.

[*6]Pro Se Motion by Litigant Represented by Counsel

Defendant's filing of motions and orders to show cause and the seeking

of relief in different courts without ever notifying one's lawyer is, in this court's opinion, a per se basis to be relieved as counsel of record. A client has an absolute right to dictate the course of the litigation so long as the acts are not frivolous, but a client must inform his or her lawyer of their actions and should not be filing pro se applications while represented by counsel, as a regular course of conduct, on their own unless extreme special circumstances exist. This court would not want to prevent a litigant who sought an order of protection or custody order from proceeding pro se, if for example they could not reach their attorney or a serious fundamental disagreement existed between counsel and client. The failure to notify counsel of the acts of the client and the affects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis.

The Appellate Division, Second Department has held that "[t]he [Family] court providently exercised its discretion in refusing to allow the appellant to make applications in court in the absence of his attorney since the record indicates that he never unequivocally requested to proceed pro se (see, People v. McIntyre, 36 NY2d 10, 364 NYS2d 837, 324 NE2d 322)." (Kennedy v. Tsombanis, 277 AD2d 315, 716 NYS2d 74 [2 Dept.,2000]). A plethora of case law exists on the issue of a litigants right to file a pro se motion while represented by counsel, however, the case law emanates from the criminal field. The criminal cases hold that "[a] criminal defendant has no Federal or State constitutional right to hybrid representation [citations omitted]. While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both. These are "separate rights depicted on the opposite sides of the same [constitutional] coin. To choose one obviously means to forego the other" (United States v. Purnett, 910 F.2d 51, 54 [2d Cir.])" (People v. Rodriguez, 95 NY2d 497, 741 NE2d 882 [2000]). It is this court opinion that a litigant should proceed in a civil proceeding by way of a pro se application only under rare and special circumstances and must inform their attorneys of their intentions.

Appointment of Counsel

Defendant again requests that this court appoint counsel to be paid with government funds. She states the she needs counsel who truly understands domestic violence and whom is ready for her case.

In response to defendant's request for the appointment of counsel to be paid with public funds, plaintiff states that defendant admits that after being served with the summons and complaint she transferred $146,000.00 which had been in her possession for a number of years to Jakarta, Indonesia. She attempted at the last oral argument to submit written documentation. It should be noted that this action was commenced on November 25, 2009, and the affidavit of service indicates that defendant was served on December 4, 2009. Defendant, who was previously employed admitted she sent a large sum of money out of the country shortly after she was served with divorce papers and [*7]now claims indigence as a basis for court appointed counsel.[FN3]

This court finds it problematic to provide court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons. The court is mindful though of the precedent established by the Appellate Division decisions which make it clear that the right to counsel in a custody or visitation dispute is fundamental (see Williams v. Bentley, 26 AD3d 441, 809 NYS2d 205 [2 Dept., 2006] ["The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Moloney v. Moloney, supra ; Matter of Wilson v. Bennett, 282 AD2d 933, 934, 724 NYS2d 520; Matter of Dominique L.B., 231 AD2d 948, 647 NYS2d 639; Matter of Patricia L. v. Steven L., supra ; Matter of Orneika J., 112 AD2d 78, 80, 491 NYS2d 639)."). Similarly, in a request for a temporary order of protection, defendant has the right to seek counsel (see Spencer v. Spencer, 77 AD3d 761 [2 Dept., 2010] Accordingly, counsel shall be appointed for defendant by separate order subject to an order that if it is found at trial that defendant secreted or transferred separate or marital assets then the costs of the court appointed attorney to the government may be ordered reimbursed to the State of New York at a future date. Defendant must fully cooperate with her lawyer. Inasmuch as the firstassigned attorneysought to be relieved and defendant thereafter hired private counsel the court need not reach the question of whether or not defendant had the right to discharge assigned counsel. Defendant is cautioned that the discharge or failure to cooperate with the newly appointed counsel may result in necessitating that defendant proceed self represented in the future.

CPLR 321 (c) Stay

Thus, the court having determined that Mr. Gilmer is entitled to be relieved the remaining issue is, should there be a stay of the proceedings pursuant to CPLR 321 (c). While a litigant is usually entitled to a 30 day stay pursuant to CPLR 321 (c) to obtain new counsel, (see Moray v. Koven & Krause, Esqs.,- NE2d , 2010 WL 4175036 (NY), 2010 NY Slip Op. 07573 [2010]) here there is a request for a stay by outgoing counsel and a request by the defendant herself that counsel be assigned by the court and paid for by public funds. This court is of the opinion that with the appointment of counsel the need for a thirty day stay is obviated.

Defendant is enjoined from proceeding pro se in Supreme Court without notifying her attorney and may only proceed pro se if she is unable to contact that attorney. This court notes that the issuing of a stay would affect the parties' rights to seek judicial relief during the thirty day period. In the event defendant seeks further relief from the Family Court, defendant must inform the Family Court of the existence of the case. [*8]

The court has on the record removed all of the photographs of the child's genitalia and they are kept sealed by the clerk of the part together with any copies. The court also notes that the plaintiff was awarded temporary custody of the parties' child after a full evidentiary hearing and plaintiff is the only individual authorized to obtain medical services or treatment for the child absent an emergency. While the defendant has agreed to stop undressing the child at the police precinct during exchanges of the child[FN4], she must now also stop bringing the child to emergency rooms and doctors absent a true medical emergency. While she claims ACS has not returned her phone calls if she truly believes that the child is neglected she shall contact the ACS hotline. The court, pending further order, directs the defendant not take photographs of the child's genitalia or stick cotton swabs in the child's nose to remove matter and then photograph same and attach it to papers alleging to show the court that the child has an illness.

Interpreter

While it has been held in certain types of proceedings, there is an absolute right to an interpreter, here, it is clear to the Court that the defendant is able to speak and rapidly respond in cohesive and intelligent English. She has also prepared extensive documents in English and readily converses in English. The attorney for the plaintiff indicates that on Hospital forms she has even checked "English" as her language. The Court has observed her speak and understand English and the Court will not at this juncture order an interpreter for her. Even at the November 17, 2010, appearance with an interpreter present, the defendant spoke and understood English, and responded to her lawyers while the Judge was still speaking in English. The attorney for plaintiff and the attorney for the child have each indicated that they believe the mother does not need an interpreter and each have heard defendant communicate and conversed with defendant in English.

The Appellate Division, Second Department in the Matter of Ejole M. held that

[a]s a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense" (citations omitted) (Matter of Er-Mei Y., 29 AD3d 1013, 816 NYS2d 539). "[W]here a court is put on notice that a defendant has severe difficulty in understanding the English language, it must inform him [or her] that he [or she] has a right to a competent translator to assist him [or her], at State expense, if he [or she] cannot afford one" (People v. De Armas, 106 AD2d 659, 660, 483 NYS2d 121). "The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights" (People v. [*9]Warcha, 17 AD3d 491, 493, 792 NYS2d 627).

(In re Ejoel M., 34 AD3d 678, 824 NYS2d 660 [2 Dept.,2006]).

The defendant participated in a temporarycustody hearing on October 7, 2010. Although a Mandarin interpreter had been provided for prior appearances defendant choose to proceed with the temporary custody hearing without the services of an interpreter. The defendant's testimony was coherent and comprehensible. There was no manifestation of need for an interpreter (see Catholic Guardian Soc. of Diocese of Brooklyn, Inc. (Ricardo V.) v. Elba V. 216 AD2d 558, 628 NYS2d 796 [2 Dept., 1995]). All of her testimony was understood by the court and it was clear that she understood the court. It was clear to this court that defendant understands the English language and successfully communicated in the English language (cf Matter of Vladimir M., 206 AD2d 482, 614 NYS2d 572 [1994] ["Over the Law Guardian's objection, the court conducted the hearing without an interpreter. The complainant's direct testimony was very difficult to understand and was, at points, incomprehensible. At the conclusion of the complainant's direct examination, the interpreter appeared. The Law Guardian requested an adjournment to review a transcript of the complainant's testimony. The court denied this request, and the Law Guardian declined to cross-examine the complainant."] Despite defendants evident grasp of English she now request the use of an Indonesian interpreter. Defendant's application, under these circumstances, is denied.

Conclusion

The issue of the defendant's request for an order of protection and plaintiff's request for suspension of visitation will be the subject of an evidentiary hearing. If properly served, the court will hear oral argument of defendant's other orders to show cause which appear in part to be best delineated as motions to renew or reargue on December 10, 2010. An attorney for defendant and a forensic shall be appointed by separate orders. The cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimbursing the State of New York for her share.

E N T E R,

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:Although there have been statements made on the record by counsel that Mr. Gilmer is defendant's fourth attorney since, at one time, Legal Aid represented defendant, there has been no appearance by Legal Aid in this case.

Footnote 2:This court notes that defendant's repeated applications to this court have resulted in delay in the hearing for an order of protection. Each time she brings on an application the opposing counsel have the right to respond. She is also cautioned about multiple applications for the same relief. If she continues to seek the same relief the court will consider directing that she can only file applications with court permission. Additional, she cannot bring on multiple applications or file answering affidavits without serving her adversaries.

Footnote 3:In open court defendant previously stated that she had these monies in her possession for a number of years and that she sent the monies back to her father who had loaned the money to her for education.

Footnote 4:Inasmuch as the exchanges of the child have been fraught with accusations by the mother, the court has insisted, over the mother's objections, that the exchange of the child take place at the police precinct. The court has also sought to minimize the number of exchanges.